- - Thursday, September 13, 2018

ANALYSIS/OPINION:

Once upon a time on campus the sexes (nobody but verbs and nouns worried about “gender”) occupied separate dormitories and women’s dorms had locked doors when someone turned out the lights. Now campuses everywhere have co-ed dorms, some with “gender-neutral housing,” where students can share a room with either sex.

To no rational person’s surprise, with the trendy accommodations have come a surge in sexual misconduct. Though it generally takes two (or more) to tango, college administrators hemmed in by federal rules almost always side with young women crying foul against young men. But justice is beginning to notice what’s really going on and now the accused is getting a fighting chance to clear his name. The campus can’t be a due process-free zone.

The U.S. Court of Appeals for the 6th Circuit in Cincinnati earlier this month spoke up for common sense when it ruled that a defendant in a campus judicial case has a right to cross-examine his accuser, a right frequently denied. Further, the court endorsed the use of an adviser to conduct such questioning, thus avoiding the emotional distress likely from a face-to-face confrontation between both sides of a hook-up gone bad.

The case, Doe v. Baum, is about two University of Michigan students who met at a “Risky Business” fraternity party, drank, danced and eventually did what comes naturally (or these days, even unnaturally). The woman, “Jane Roe,” filed a complaint with the university two days later, saying she had been too drunk to give consent. “John Doe” disputed the claim during an investigation, contending that he had no indication that she was drunk or that their relationship was anything but consensual.

Based on the testimony of the two and 23 other party-goers, a university investigator found no evidence of sexual misconduct and recommended the university dismiss the case. The woman objected and asked the university to reconsider. A three-member campus appeals panel decided the investigation was fair and thorough, but nonetheless reversed the finding and ruled against “John Doe.” The panel rationalized that the aggrieved woman’s witnesses, sorority sisters backing her account, were credible and the defendant’s witnesses, fraternity brothers authenticating his story, were less so.

Facing expulsion, “John Doe” quit the university 13.5 credits short of a degree. He sued the university in U.S. district court, charging the disciplinary proceedings violated the Constitution’s due-process clause by failing to grant him an opportunity to contest his accuser’s complaint, and broke federal Title IX legislation which prohibits discrimination in educational opportunity on the basis of sex. The district court dismissed his suit, but the appeals court reversed that ruling, allowing his lawsuit to proceed.

“Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth,” wrote appeals court Judge Amul Thapar, who was appointed to the appeals court last year by President Trump. “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story, but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.”

Hundreds of young men accused of sexual misconduct have been expelled or forced to withdraw from colleges across the nation in recent years as campus misconduct boards have perfunctorily rejected their accounts in favor of the accusers’. That practice has sprung up as a result of a Department of Education policy of the Obama administration that favors women by instructing judicial boards to define sexual misconduct in overly broad terms such as “unwelcome conduct of a sexual nature,” and including verbal and nonverbal behavior. The use of the squishy Obama-era “preponderance of evidence” standard has resulted in harsh rulings based on little more than a choice between “he said” and “she said,” hard facts be damned.

The blurring of justice prompted Secretary of Education Betsy DeVos to push back with new rules for adjudicating misconduct proceedings at public universities. The new measures would give institutions a choice between using the “preponderance of evidence” guideline or a stricter principle of “clear and convincing” evidence in weighing guilt, as well as enabling schools to decide whether to implement an appeals process.

The proposed requirements would narrow the meaning of “sexual harassment” to follow a standard more descriptive of physical activity than unspoken signals. The right to cross-examine accuser and defendant, as endorsed by the 6th Circuit’s ruling, and the use of mediation between the conflicting pair are under consideration.

Rape and sexual violence are evil, and never excusable, but so is assigning guilt without a fair hearing. Hormones and human nature being what they are, it is imperative to adjudicate the inevitable sexual clashes between young men and women on campus with the constitutional protections applied everywhere else. To do otherwise invites abuse, which is also evil.


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