April 11 2017
Stuart Taylor, coauthor with KC Johnson of The Campus Rape Frenzy: The Attack on Due Process at America's Universities, argues in this morning's Wall Street Journal, that since much of the injustice began with the stroke of a pen, the stroke of another pen could go a long way towards restoring due process:
With his legislative agenda in trouble, President Trump could do a lot of good by using his executive power to reverse an egregious example of the Obama administration’s bureaucratic tyranny. I refer to the 2011 command by the Education Department’s Office for Civil Rights, and subsequent orders, forcing thousands of schools to take an aggressive role in the investigation and punishment of alleged sex crimes on college campuses.
Under threat of losing federal funds, almost all schools have willingly complied with a procedural regime that effectively presumes the guilt of every accused student, 99% of whom are male. These procedures include a virtual ban on cross-examination of accusers, a rushed process making it hard for an accused student to prepare a defense, and a mandate that those found innocent be subjected to appeals by accusers—a form of double jeopardy.
The OCR also demands that schools judge guilt on the “preponderance of the evidence,” not the more rigorous “clear and convincing evidence” standard that was often used before, or the “beyond a reasonable doubt” standard that prevails in criminal cases.
Many universities have adopted other rules that compound the unfairness OCR explicitly demands. These rules redefine rape and sexual assault so broadly as to include almost all alcohol-fueled sex and many other commonplace, consensual sexual practices. Administrators have empowered campus sex bureaucrats—whose main mission is to please OCR—to decide accused students’ fates and “trained” them to view accused males as almost always guilty. Lawyers for the accused are barred from speaking in campus proceedings. The accused are often denied the right to see specific allegations or evidence against them.
OCR-mandated procedures have largely demolished due-process protections for many innocent (as well as guilty) accused males. Hundreds if not thousands have been falsely branded as rapists and expelled or suspended, with life-changing consequences.
The Trump administration could easily restore due process, but Taylor notes that so far neither the president nor Ed Secretary Betsy DeVos have acted. The simplest thing to do, Taylor says, is to revoke the OCR mandates that posed as "guidance." But that won't be enough, he writes, because so much damage has been done. The Trump administration should provide new guidance that restores due process. The longer the Obama era mandates stay in effect, the more difficult it will be to remove them. (That seems to be a common theme of Obama-era innovations!)
Meanwhile, KC Johnson replies in the City Journal to the New York Times hostile review of the book, questioning whether the Times, which has been a cheerleader for the Obama rape stats and, before that, for rushing to judgment in the Duke lacrosse scandal, can even be objective on the matters raised in the book.