The Rage for Campus Justice

Quietly, in courtrooms across the nation another piece of the Obama legacy is being systematically dismantled. The question involves a Department of Education Title IX directive whereby the Obama administration told college administrators to take charge of sexual assault claims.

Taking charge meant instituting extra-judicial proceedings wherein the accusing females were assumed to be telling the truth and where accused males would be deprived of due process of law. They would have no right to confront their accuser, no right to cross examine and were deprived of the presumption of innocence. Being male they were presumed to be guilty.

It was yet another front in the culture war against men. Many law professors, across the nation, denounced the practice. But, the damage was still done. Between the time that an administrative kangaroo court expels a student from college and the time that the case makes its way to the courts, there is very little that can be done to mitigate the damage done.

For the most part, to my knowledge, appeals courts have systematically ruled in favor of the accused students. (Democratic circuit judges, however, seem inclined to rule against the accused.) For the most part, no one really cares. In our charged cultural climate the will to summary justice dominates over the rights of the accused. You will have noticed that the media is largely silent on this issue. Injustices perpetrated by the Obama administration are covered up, as a matter of policy.

Recently, the Seventh Circuit Court of Appeals overturned a decision rendered by administrators at Purdue University. People have highlighted the case because the presiding judge, Amy Coney Barrett, is apparently on President Trump’s short list for the Supreme Court. You might recall that when Barrett was confirmed to the appeals court, Sens. Durbin and Feinstein denounced her for being… a Roman Catholic. Some religious groups are still subjected to appalling bigotry in the American Congress. 

If you thought that the Kavanaugh hearings were brutal, nominating Barrett to the Supreme court will make them look like child’s play. 

KC Johnson reports for City Journal. See also this article from the Chronicle of Higher Education. (via Maggie’s Farm)

Last month, the Chicago-based Seventh Circuit Court of Appeals sided with a student who sued his school for unfairly finding him guilty of sexual assault. Reversing a lower court’s dismissal of the anonymous student’s claims against Purdue University, Judge Amy Coney Barrett wrote that it was “plausible” that Purdue’s investigation panel “chose to believe Jane [Doe] because she is a woman and to disbelieve John [Doe] because he is a man.” The court held that the university violated the student’s due process rights and engaged in gender discrimination, forbidden by the Title IX statute. 

Since 2011, the federal government has enforced Title IX in cases of campus sexual assault, with nearly 500 accused students having filed similar lawsuits. In John Doe v. Purdue University, the plaintiff relied solely on a statement written on the accuser’s behalf by the campus victims’ rights office. Despite scant evidence, the Title IX investigator deemed the accuser the more credible party—without ever speaking to her. In what Judge Barrett called a “perplexing” decision, Purdue found the accused student guilty of sexual assault after a hearing in which the accuser didn’t even appear. Doe suffered life-altering consequences, losing his ROTC scholarship and his dream of serving in the Navy.

As Barrett noted, “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension.” Purdue’s investigator declined to speak with Doe’s roommate, who he said would corroborate his version of events. The university then withheld the investigator’s report from Doe, a decision that the court labeled “fundamentally unfair.” Indeed, university officials appeared to have rendered their verdict upon hearing the accusation.

The resulting hearing, according to Barrett, lacked the “relatively formal procedures” necessary when universities adjudicate claims of “sexual violence,” as opposed to typical academic misconduct. To Purdue spokesperson Brian Zink, though, Doe received “broad and appropriate protections.” That an institution helmed by one of the nation’s finest university presidents, former Indiana governor Mitch Daniels, deemed “appropriate” a process that a federal appeals court considered a “sham” speaks volumes about fairness in Title IX tribunals.

So, the process bespoke bigotry. You will notice that the case derived from Purdue University, not from some Ivy League indoctrination mill. Purdue’s president is former Indiana governor, Mitch Daniels, a Republican. How does it happen that a Republican politician allows such things to happen at an institution he runs?

The Barrett decision does not stand alone. A Sixth Circuit opinion reached the same conclusion in a comparable case:

Only a decision from the Sixth Circuit—rendered last September in John Doe v. David H. Baum et al.—exceeded Barrett’s opinion in importance on this issue. In that case, writing for a unanimous panel, Judge Amul Thapar held that in sexual assault adjudications addressing credibility—as almost all do—the due-process clause requires universities to “give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” Such safeguards—considered routine in any other venue—reflect traditional American legal principles for anyone facing serious charges. As the Sixth Circuit noted: “Being labeled a sex offender by a university has both an immediate and lasting impact on a student’s life.”

Apparently, the case is heading toward the Supreme Court:

With appeals from other accused students currently pending in the First, Third, Eighth, and Tenth Circuits, the Supreme Court could decide whether colleges are constitutionally obligated to give accused students a fair shake in Title IX hearings. That GOP Supreme Court short-listers like Barrett and Thapar penned the two most significant decisions in favor of accused students might suggest that the issue would be as politicized in the high court as it has become elsewhere.

It need not be. After all, in an interview last year with the Atlantic,Justice Ruth Bader Ginsburg commented that “the person who is accused has a right to defend herself or himself . . . There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know.” Previewing the reasoning of Judge Barrett’s Purdue opinion, Ginsburg concluded that “everyone deserves a fair hearing.” Let’s hope that Justice Ginsburg’s reasonable interpretation of the principle of due process gets heard, too.

It’s an interesting sidelight on the rage for justice.