Earlier this week, the New York Times published a piece arguing that the so-called “Weinstein effect” should impact the debate over sexual assault and due process on campus. How? In part by stopping efforts to bolster legal protections for accused students.
About six years ago, colleges began offering better support and justice for victims, pushed in part by a grass-roots movement among students themselves. But in September, pundits across the political spectrum approved when the Education Department rolled back some Obama-era rules that had broadened protections for college sexual assault victims, ostensibly because they robbed accused students of their right to due process in campus courts. Obama’s rules were already pro forma at some colleges before his 2011 federal guidance, so I believe the backlash isn’t truly about government policy, but discomfort about the change in how students approach the problem of sexual assault today.
This is very, very wrong. The “backlash” is triggered in large part because court after court (including judges across the ideological spectrum) has concluded that government tribunals (and at private colleges, government-mandated tribunals) have violated the fundamental due process and other legal rights of accused students. No amount of political awareness trumps the Constitution, and due process still applies to state efforts to deprive any person of “life, liberty, or property.”
These concepts are not difficult. When the government initiates legal proceedings that deprive a student of a liberty interest or property interest, there are certain due-process safeguards that automatically attach. They include, among other things, the right to fair notice of the charges, the right to a hearing in front of an impartial tribunal, the right to confront and cross-examine an accuser, and the right to see the relevant evidence. Colleges routinely violate those rights.
At the same time, when the government is not involved — such as when voters are deciding whether to elect a senate candidate, or when the viewers decide which movies to watch — due process does not apply. In fact, in most claims of sexual misconduct by politicians, due process is entirely irrelevant. There’s no judicial proceeding at all. Instead, the public’s duty is to consider the available evidence as fairly as possible, without partisan bias.
Going back to colleges, it’s in times of fear when due process is most important. Connecting the awesome power of the state to a wave of public fear almost always leads to bad results. Now is not the time to back away from our most foundational civil liberties.