Wednesday, November 21, 2018

The assault on due process

There is an awful lot not to like about Education Secretary Betty DeVos. She wants to get rid of public education. She caters to the for-profit schools that rip off their students. She is opposed to student loan forgiveness.

But, please, her proposed rule changes to the ways schools handle alleged incidents of sexual assault are a good thing.

Colleges are required under Title IX to foster an environment free from sexual, racial and ethnic discrimination and harassment.The rule change under fire from certain quarters is the requirement that the accused is afforded the right to question the accuser.

Yikes! That's certainly a radical idea, isn't it. Being able to confront your accuser. Seems to me there's something about that right to confrontation in the Sixth Amendment. And, you know, that little matter known as due process.

But should you attempt to defend the proposed rule changes, you will quickly be under attack from the mob. They will tell you that these campus hearings aren't criminal matters and that due process doesn't apply. They will accuse you of perpetuating the myth that men are falsely accused of sexual assault.

While these hearings aren't criminal in nature, they are quasi-criminal and they do carry consequences if the panel, arbitrator or judge finds the accused liable. Students can be expelled, suspended or placed on academic probation. Each of those outcomes is a restriction on the student's liberty. Even if we aren't talking about the accused going to jail or being convicted in a court of law, the accused still faces sanctions. And when one party attempts to limit the freedom of another, the concept of due process comes into play.
We conclude that these cases distill to a set of core principles applicable to cases where the accused student faces a severe penalty and the school's determination turns on the complaining witness's credibility. First, the accused student is entitled to "a process by which the respondent may question, if even indirectly, the complainant." Second, the complaining witness must be before the finder of fact either physically or through videoconference or like technology to enable the finder of fact to assess the complaining witness's credibility in responding to its own questions or those proposed by the accused student. 
-- John Doe v. Claremont McKenna College
I get it. Sexual assault is a frightening thing and having to recount details of an alleged assault can be traumatic for the person making the accusation. But it's not a cakewalk for the accused. There is a lot on the line for both parties.

And if a school tribunal wishes to lower the burden of proof on the accuser, then the accused needs due process more than ever. And if that means the accuser has to answer questions from the accused, or his representative, then so be it. If the problem is having the accused asking the questions, then you must afford the accused the right to representation.

Now I'm not going to get into the veracity of the claims or whether the definition of sexual assault in that environment is too loose. I will say, however, that a good many of these claims result from incidents in which one or both parties consumed alcohol and the presence of alcohol (or other intoxicating substances) can bring both parties' accounts of a situation under scrutiny.

Ultimately the opposition of some to due process results from one subsuming the workings of the law to his or her political theory or ideology. Due process is the manner by which we attempt to bisect those tendencies. Yes, it's harder to prosecute when you have to afford the accused due process, but that's the way it should be when one's liberty interest is at stake.

Those who oppose due process in this environment fear that in the crucible of cross-examination that the narrative they so wish to promote will not hold up.

h/t KC Johnson

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