The Corner

Yet Another College Loses a Due Process Case

I missed this news last week, but it’s certainly worth highlighting. Another college has lost another due process case after railroading a male student in a campus rape tribunal. The College Fix reprints the opinion and summarizes the case:

San Diego State University violated “procedural fairness” by refusing to let a student accused of rape have an advocate “with the same or substantially similar skills, training and experience” as his accuser’s advocate, a California court ruled.

Judge Joel Wohlfeil ordered the university to “dissolve the finding” by Dr. Lee Mintz, who also served as the school’s investigator, that “John Doe” did not stop having sex with “Jane Roe” when she asked.

It also must take back its finding that Roe “became incapacitated” and Doe “continued to have sex with her.” Mintz characterized those findings as “sexual assault” and “rape.”

Without getting too far into the weeds of the case, the accuser claims that she asked the accused to stop having sex with her after she says she felt sick after ingesting edible marijuana. The male student claimed the sex was over before the marijuana could have taken effect and that text messages, phone records, and a polygraph backed his version of the events. 

The judge, for his part, declared that the “disparity” in the proceedings shocked his conscience. In essence, the accused was left to defend himself while his accuser was able to utilize the services of a “skillful, trained and experienced advocate,” the very person who investigated the case:

At the time of the incident, Petitioner was 18 years old. At the time of the hearing, in which Dr. Mintzaccused him of “sexual assault” and “rape,” Petitioner was 19 years old. Respondents presented their case through a skillful, trained and experienced advocate; namely Dr. Mintz. Petitioner was left to present an opening statement, examine lay and expert witnesses, and argue his defense on his own behalf. True, Petitioner was allowed to consult with his attorney (which the record reflects as”whispering”) but he was still the only person allowed to advocate his defense. The Court wonders how,given Petitioner’s youth, infant stages of his post-secondary education and the seriousness of the charges, Petitioner was able to conduct himself as well as he did.

It’s not uncommon for universities to limit the role of attorneys or advocates in internal disciplinary proceedings. I’ve worked on a number of cases where clients were denied help in front of campus tribunals, including one memorable case where a student’s own mother wasn’t even allowed in the room for moral support. It’s one thing to do this for alleged violations of, say, campus academic policies. It’s another thing entirely when a university is charging a student with committing a serious crime. In either case, it’s improper to so drastically limit the student’s defense, but in the case of claims of rape or sexual assault, it’s egregious. 

Cases like this are becoming commonplace, and the frequency with which universities lose is itself notable. Judges do not want to function as university disciplinary boards and have traditionally given schools wide latitude to fashion their own campus judicial systems. Colleges have abused their autonomy, and now judges are starting to re-impose the rule of law.

KC Johnson and Stuart Taylor have written an excellent new book, called the Campus Rape Frenzy, that explains and condemns the modern hysteria surrounding campus sexual assault. Radical ideologues have convinced even the federal government that the rape rate on American campuses approaches or even exceeds that found in conflict zones abroad. It’s a patently absurd claim, but the Department of Education has used it to justify issuing guidance requiring that universities systematically prosecute accused students without also providing them with adequate due process.

Betsy DeVos has the power to revoke this guidance and restore a measure of sanity to campus justice. Will she have the fortitude to confront campus radicals? Time will tell. 

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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