When most Americans are accused of crimes, they are given an array of protections against unfair treatment during official proceedings, starting with the famous Miranda Rights warning. The due process requirements built into our criminal law system help to guard against overzealous prosecutors who merely want to rack up as many convictions as possible.
But when college students are accused of misconduct, they often do not receive anything like fair treatment. Especially when it comes to allegations of sexual wrongdoing, under Title IX, students face a prosecutorial phalanx that rivals the old Soviet system.
In today’s Martin Center article, I write about this problem.
At the heart of the problem is the lack of a right to legal counsel. Colleges frequently deny accused students an attorney, or if they do allow one, so limit his or her role that the school’s Title IX team enjoys a huge advantage.
Going back several years, a few states have taken steps to address that imbalance, starting with North Carolina. In a recent Federalist Society paper, professors Mike Adams and K.C. Johnson looked at the state efforts at balancing the scales of justice. It’s a good thing that states are realizing that they have a problem, but thus far only three have done anything.
The federal government is the 800 pound gorilla in this matter and, until recently, it was completely behind the prosecutorial imbalance. Under the Obama administration, the Department of Education promulgated rules designed to nail as many students as possible with Title IX violations. Under Secretary DeVos, the Department has just announced prospective rule changes that would go a long way toward restoring fairness.
Naturally, the Left has denounced the proposed changes, declaring that fairness for the accused somehow encourages sexual assault. I point out that the opponents of Miranda Rights made similar claims back in the 1960s. The Department’s new rules will have to go through the “notice and comment” period of the Administrative Procedure Act (which Obama’s officials ignored), but they should survive the wailing from people who want punishments rather than justice.