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New Book Takes Thorough Look at College Due Process Problems

Brooklyn College professor KC Johnson and journalist Stuart Taylor, Jr. cover an impressive amount of ground in their new book, . Readers who are less familiar with the problem of colleges and universities trampling on studentsā due process rightsāparticularly in the context of sexual misconduct adjudicationsāwill find a helpful and thorough history of the expansion of Title IX over the years. Readers who can already rattle off a list of cases in which campus hearings were fundamentally unfair will likely encounter horror stories that are new even to them.
Hereās just a small sampling of the cases Johnson and Taylor share: When a student at a āsmall Midwestern campusā was expelled for an alleged sexual assault, his findings letter āfail[ed] to specify what [the respondent] supposedly didā that was not consensual. An investigator at Georgia Tech found a student responsible for an alleged assault despite reaching the conclusion that āit is reasonable to believe that based on the nonverbal action of [the accuser] that [the accused student] believed he had consent.ā A student accused of ādating violenceā at Colgate University was ālocked in the back of a campus safety vehicle and then confined in the basement of [Colgateās] Curtis Hall before he even knew the charges against him, after he refused a one-way ticket to his native Bangladesh.ā
The book is also jam-packed with insight from the countryās most prominent due process advocates, including Harvard Law Schoolās Jeannie Suk Gersen, Jacob Gersen, and Janet Halley; senators James Lankford and Lamar Alexander; and, of course, Āé¶¹“«Ć½IOS staff. Johnson and Taylor take care to repeatedly emphasize that procedural safeguards in campus hearingsāas in the courtsābenefit all parties.
āThe due process protections that exist in the civil system and in the criminal system,ā [attorney Joshua] Engel observed, ādid not spring out of the earth and are imposed on parties for an arbitrary reason. Theyāre there because we believe that theyāre valuable in the truth-finding process. So every time that you move away from one of these ideasāone of these protectionsāthat are considered . . . a core due process protection, you lose some truth-finding process[.]ā
As Johnson and Taylor explain,
the people who investigate felonies need legal and forensic evidence-gathering tools that Title IX offices do not have: search warrants, subpoenas, powers of arrest, legal firearms, the penalty of perjury for false testimony, and so on. With none of these tools, campus sexual assault investigators will almost always have less evidence and weaker truth-finding abilities than law enforcement.
But worryingly, this point is lost on many. The book describes case after case of investigators failing to consider exculpatory evidence, accused students being prohibited from questioning their accusers and witnesses, and unfair proceedings being conducted with no reliable record for studentsā lawyers to work with when they try to help students find justice in the courts.
The book also relays some of the past six yearsā most staggeringly straightforward rejections of due process, with campus administrators asking, āWhy could we not expel a student based on an allegation?ā and asserting that the Constitution ādoesnāt supersedeā Title IX. Across the country, those charged with handling accusations of sexual assault maintain attitudes at odds with principles of fundamental fairness. Hereās one example:
Bill Haggard, [University of North Carolina]-Ashevilleās vice chancellor for student affairs, faulted his stateās elected representatives for failing to understand that āa key component of the developmental process of responding to student misconduct is for the student to take responsibility for their [sic] own behavior and to learn from the incident.ā It seemed never to have crossed Haggardās mind that an accused student may have done nothing wrong for which to ātake responsibility.ā He also celebrated accused students having the ālearning experienceā of defending themselves, without counsel, against accusations that could (be they innocent or guilty) ruin their lives.
As the authors note, āAttacks on free speech have proliferated in tandem with attacks on due process for accused students.ā Accordingly, Johnson and Taylor briefly review the risk to freedom of expression created by the federal governmentās over-enforcement of Title IX, including the University of Montana āblueprintā definition of sexual harassment.
Itās not all bad news, though. The authors include in their book several recent court rulings that acknowledge the danger of recent university policy trends like single-investigator models and āaffirmative consentā standards. On single-investigator models, for example:
As U.S. District Judge F. Dennis Saylor noted in March 2016, āThe dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.ā
Thereās much, much more on each of these topics and others in Johnson and Taylorās book, so I recommend and reading it in its entirety. For even more on campus due process and the authorsā reflections on writing this book, check out The Daily Wireās and the duoās at The Volokh Conspiracy, hosted by The Washington Post.
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