patrick.net

From coast to coast, accused students — typically men punished for sexual assault with barely a chance to defend themselves — are filing lawsuits containing often-shocking claims. Judges, accustomed to the value of due process, often find themselves stunned at the unfairness of campus proceedings. And if you think that wrongful convictions for sexual assault aren’t serious because the men don’t go to prison, well then talk to the young men whose careers and reputations are shattered before they’ve had a chance to build a life.

In the days after the Brett Kavanaugh confirmation, when the op-ed pages were still filled with examples of women’s rage, a California state court of appeals handed down a decision in a case against the University of California–Santa Barbara that should remind us all of the high costs of a rush to judgment. ...

So, let’s review — the university violated a basic rule of evidence, withheld key information from John until the day before the hearing, refused to let him question the accuser about that information, and then allowed its lawyer to render objections to John’s case. The court’s conclusion was stinging: “It is ironic,” said the court “that an institution of higher learning, where American history and government are taught, should stray so far from the principles that underlie our democracy.”

In other words, the university stacked the deck. It biased the proceedings against John, and in so doing violated his fundamental constitutional rights. Note that the court did not excuse these violations because it was ruling on a mere academic hearing. Bad processes hurt people, even when those bad processes don’t result in prison.

I’m singling out the UCSB case simply because it is so recent. It’s but one example among many. In fact, two weeks before the California court handed down its opinion, the Seventh Circuit Court of Appeals heard arguments in a case that Brooklyn College professor K. C. Johnson — perhaps the nation’s foremost expert on Title IX adjudications — called “unusually troubling, even in the Title IX realm.”

The guilty finding led to a loss of the accused student’s ROTC scholarship and Navy career, after a process in which the accuser neither appeared at the hearing to speak and answer questions, but didn’t even submit a statement to the hearing. (The evidence in the case was a Title IX investigator’s report and a statement written on the accuser’s behalf by a university counselor.) The complaint alleged that the accused student had no chance to present exculpatory witnesses, including a roommate who said that the alleged assault never occurred.

As Judge [Amy Coney] Barrett noted, “It was a credibility contest in which you not only did not hear directly from [the accuser], you didn’t even read words that she had written.”

I wonder if that student is consoled that its “only” his Navy career at stake. The goal of any adjudication is justice, and centuries of experience have taught us that justice is elusive when due process is denied. We cannot have our culture believe that the way of the university is the way forward for our nation. The guiding principles should be clear. Respect women and hear their claims. But “believe women”? No, believe evidence, and give every accused a fair opportunity to defend his liberty, his education, and his career.