The End of College Show Trials

There is some great news in U.S. Academia.

In 2011, Biden and Education Secretary Arne Duncan released a “Dear Colleague” letter, that “compelled schools to conduct sexual-misconduct inquiries as if they were show trials — stripping students of the ability to face their accuser, or to call witnesses, or to see the evidence against them” according to David Harsanyi.

This is no longer the case in 2020.

According to The Foundation for Individual Rights in Education “[a]dvocates for free speech and due process on campus won one of their biggest-ever victories today with the finalization of long-awaited new Department of Education Title IX regulations.”

Among the changes from the previous Obama Administration Department of Education regulations are:

  • An express presumption of innocence; [!!!]
  • Live hearings with cross-examination conducted by an advisor of choice, who may be an attorney;
  • Sufficient time and information — including access to evidence — to prepare for interviews and a hearing;
  • Impartial investigators and decision-makers;
  • A requirement that all relevant evidence receive an objective evaluation.

The regulations also affirm institutions’ ability to use the “clear and convincing” standard of evidence, which the government previously forced schools to abandon in 2011 for the lower “preponderance” standard in sexual misconduct cases.

Finally, the regulations define “sexual harassment” as it was defined by the Supreme Court of the United States in Davis v. Monroe County Board of Education (1999). This definition provides a clear path for institutions to respond to allegations of misconduct while also protecting students’ expressive rights.

According to Harsanyi:

The Obama guidelines allowed accusers to appeal “not guilty” verdicts but did not guarantee the same right for the accused. Rather, it permitted penalties to be handed out before investigations were even conducted. And those who conducted the investigation, often a single untrained employee, were empowered to be both judge and jury. Adjudicators will now be trained, and the training material they use will be published on the school’s website to offer transparency.

The new rules, and there are 2,033 pages of them, also expand the protections for victims by asking schools to investigate allegations of stalking, domestic violence, and dating violence.

The rules also roll back broadsides against free speech instituted by the Obama administration, which forced schools to investigate sexual-themed speech that offended students. As with most things on campus these days, the process was hijacked by brittle and perpetually offended progressive students. [“Betsy DeVos Restores Due Process, Dems Freak Out“]

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In a hypocritical twist, Democratic nominee for President Joe “Biden says he’ll reverse DeVos rule bolstering protections for those accused of campus sexual assault” (The Hill):

“It’s wrong,” Biden said. “And, it will be put to a quick end in January 2021, because as president, I’ll be right where I always have been throughout my career — on the side of survivors, who deserve to have their voices heard, their claims taken seriously and investigated, and their rights upheld…

City Journal contributor, KC Johnson summarizes the hypocrisy of the Biden situation (now including allegations of sexual misconduct from Tara Reade):

Biden’s approach to campus sexual misconduct effectively reverses Blackstone’s central premise of common law: to undo the injustices of the past, this new tenet holds, it is better that 10 innocents suffer than one clearly guilty student escape. If this approach requires a presumption of guilt that sweeps up the innocent and the almost-certainly innocent as well as the guilty, that’s a price that society (and, of course, the innocent) must pay.

Biden’s current situation recalls that of former senator Al Franken, who bitterly criticized DeVos’s Title IX policies, only to flail about in defending himself against allegations (mostly less serious than what Biden faces) of sexual misconduct. Ideologically boxed in, Franken could not defend himself by challenging his accusers’ veracity, lest he appear to reject the party’s consensus about believing all complainants.

In an ideal world, Joe Biden would use his new experience as an accused party to champion fairer treatment across the board. More likely, he’ll fall back on a double standard, demanding that he receive the benefit of the doubt denied to others—especially students with far less power than he possesses.

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