The Corner

Politics & Policy

Due Process Is Not the Opposite of Justice

Education Secretary Betsy DeVos delivers a major policy address on Title IX enforcement at George Mason University, in Arlington, Va., September 7, 2017. (Mike Theiler/Reuters )

In a Washington Post piece detailing Education Secretary Betsy DeVos’ new guidelines for handling cases of students alleging sexual assault, I stumbled upon this remarkable sentence:

While the #MeToo movement brought increased public scrutiny to harassment and assault, the Trump administration’s proposal pushes the pendulum in the reverse direction by strengthening due process protections for those accused of offenses.

If on the one side of the pendulum is increased scrutiny over sexual assault, then the “reverse” can’t be the right to due process. The two, in fact, aren’t even on the same pendulum. Due process concerns itself with procedure, not substance. It allows “emotionally charged conflicts,” as the Post helpfully puts it, to be adjudicated in an impartial manner. The opposite of increased public scrutiny to harassment and assault is less scrutiny, not fewer rights for the accused. It’s alarming that this even has to be debated.

The most controversial provision in the DeVos guidelines requires universities to allow cross-examination of alleged victims. Why? The right to face one’s accuser is a fundamental ideal of justice. Right now, a “single investigator” is, most often, deputized judge and jury in these cases. Without any real right to defend oneself, the accused is subject to the vagaries of public opinion and emotion.

As it stands, accused students live with the presumption of guilt. The Trump administration’s proposal pushes the pendulum in the reverse direction by restoring some semblance of justice. Insofar as there is a “reversal” here, it’s toward, not away from, the justice the Constitution guarantees.

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