A federal judge has given the green light to a lawsuit challenging the legality of Brandeis University’s sexual assault proceedings in a sharply worded opinion arguing that the school has tilted the process so far in favor of accusers that it unlawfully abridges the rights of the accused. KC Johnson, an expert on campus due process who made the ruling available online, highlights the following passage:
Like Harvard, Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts. If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.
The case in question—in which a student was penalized for, among other things, kissing his boyfriend without express approval—sounds particularly egregious. Robby Soave of Reason has a good summary:
The two began dating in the fall of 2011. They broke up in the summer of 2013. In January 2014, J.C. made a two-sentence accusation against Doe, who was not informed of the nature of the charges against him. He was also denied a lawyer, the opportunity to evaluate evidence against him, and the opportunity to cross-examine witnesses, including his accuser. Brandeis uses the “special investigator” model to handle sexual assault disputes: a single administrator reviews the charges, investigates them, and makes a decision. There was no panel hearing. There was just one person’s decision.
Ever since the Obama administration issued its “Dear Colleague” letter in 2011 ordering campuses to weaken due process protections, many universities have adopted procedures like Brandeis’s. And despite tireless advocacy by civil liberties groups, growing resistance from faculty, and political pushback from legislators, the federal pressure shows few signs of abating, and timid university administrators have not pushed back.
While the politics of this issue are complex and unpredictable, it seems unlikely that a Hillary Clinton administration eager to prove its left-wing credentials to campus activists would retreat from the Obama administration’s hard line. So it may be that the first and last line of defense of campus due process is the court system. Hopefully this powerfully argued ruling, from a respected federal judge, will influence others on the bench to carefully scrutinize these campus policies as they make their way through the courts.