Critics of Federal Policy on Campus Sexual Assault Adjudication Are Needed but Absent

An article in the National Review has decried the failure of Republicans and of Congress to question the Obama Administration’s policy on college disciplinary procedures for rape complaints.

Authors Stuart Taylor, Jr., and K.C. Johnson profess that they are not Republicans mounting partisan attack. One of them voted for Obama twice and donated to his campaign. The other is an independent. Rather, they say, they write because they are appalled at the disregard for due process in the Department of Education’s instructions to colleges and universities.

The Office of Civil Rights in the Department of Education has interpreted Title IX of the Educational Amendments Act of 1972 to require that campus discipline of persons accused of sexual assault meet certain standards. The text of Title IX merely prohibits sex discrimination in federally-funded schools; most people know it as the law that required colleges to increase their spending on women’s athletic programs. Before 2011, no court or administration had contended it established any requirements for campus adjudication of rape complaints.

Congress members of both parties are lining up with the new policy.

According to the article, Rep. Jared Polis (D., Colo.) was applauded by campus rape activists when he said during a Congressional hearing, “If there are ten people who have been accused, and under a reasonable-likelihood standard maybe one or two did it, it seems better to get rid of all ten people.” This essentially reverses the principle of Anglo-American law that it is better for ten guilty persons to go free than for one innocent to be imprisoned. (Polis, the article says, later backed away from his statement.)

Given their dependence on federal funds, it is not surprising that many colleges and universities are embracing the mission thrust on them by the Department of Education. Write Taylor and Johnson:

Accusations against innocent students seem to be increasing at colleges, where accusers are urged by campus sex bureaucrats, professors, and activists to report dubious … allegations.

Institutions of higher learning also tend to define rape and sexual assault far more broadly than either the criminal law or common understanding, as in the suggestion that sex with a partner who in any degree is intoxicated constitutes sexual assault. Far from acquiescing in “rape culture” as sensationalized by the media, America’s universities are in the grip of a dangerous presume-guilt-and-rush-to-judgment culture. An entire generation of college students is learning to disregard due process and the dispassionate evaluation of evidence.

Why is there no push-back from Republicans against this policy of a Democratic administration? The authors note that “protecting the civil liberties of people accused of violent crimes has never been a high priority for most Republicans.” And Republican presidential candidates are especially worried about taking any positions that seem insensitive to women; in recent years GOP candidates talking about rape have done the party much damage with women voters.

The authors have not given up, though. They exhort Congress to use its oversight powers to build public support for fair treatment of those accused of rape on campus.