As the new fall semester approaches on college & university campuses around the nation, I cannot help but feel apprehension for you young men about to embark on your paths to higher education.
It can credibly be described as a given, that young people leaving high school have very little knowledge of, or interest in, the United States Constitution, its Bill of Rights, or legal fundamentals such as the differences between civil & criminal law procedures, rules of evidence, or legal doctrines pre-dating American law by centuries, such as rights to trial by jury and a presumption of the innocence of those accused, or the burden of proof on the prosecution.
For young men entering campus life for the first time, this poor comprehension of your own basic civil rights under rule of law, combined with the ancient constant of collegiate bacchanalia as a primal urge for those newly separated from the strictures of childhood and home life, is more a potentially catastrophic threat to your futures and your civil liberties right now than perhaps ever before.
Under guidelines imposed as conditions of funding from the US Department of Education, known broadly as "Dear Colleague" policy, radically anti-Constitutional practices and procedures installed by campus authorities across the nation have effectively removed every campus in the national system from the jurisdiction of the 4th, 5th, 6th & 14th Amendments.
These crucial safeguards against both vigilantism and what Supreme Court Justice Ruth Bader Ginsburg described as "unchecked police activity" (See Fernandez v California, dissenting opinion: http://www.supremecourt.gov/opinions/13pdf/12-7822_he4l.pdf ), have been replaced by DOE with policies ostensibly crafted to “prevent sexual assault”, which in effect remove from men all the protections of your civil liberties guaranteed all citizens under the Constitution.
The arguments in favor of Dear Colleague/Title IX policies are weak and emotional at best. Proponents of these kangaroo-court practices seldom even mention the Bill of Rights, due process of law, presumption of innocence, or any other legal fundamental used for centuries in American jurisprudence to govern proceedings establishing guilt or innocence on criminal charges. Their consistent claim is that the criminal justice system simply isn’t getting it right, that by following the law and the rules of evidence & procedure the law demands, the police, prosecutors and courts across the US are just not convicting enough men charged with sexual assault to satisfy the supporters of Title IX/Dear Colleague policies.
In her New York Times op-ed entitled “Campuses Are the Best Places for Sexual Assault Accountability”, Holly Rider-Milkovich, director of the Sexual Assault Prevention & Awareness Center, University of Michigan, asserts: “The criminal justice system alone is simply not effective enough to keep young people safe. Pernicious victim-blaming attitudes and myths about “wanted” sexual assault still permeate our entire culture, not just our campuses.”
In an essay that never once mentions the ideas of due process of law, presumption of innocence, prosecutorial burden, or the United States Constitution, its author’s entire legal argument, posited by its title, is an indictment of “attitudes” and “myths” that “permeate our entire culture.” Its explicit assertion is that the rule of law and the correct application of criminal procedures are simply not producing a satisfactory result (one which we may assume would further benefit the funding stream of organizations such as she runs at The University of Michigan.)
The key to these “alternative” methods used on campuses for adjudicating sexual assault allegations is in by-passing criminal procedure altogether, by setting up ad hoc administrative tribunals to hear these accusations, which place burden of proof on the accused, deny him legal counsel or a right even to know the identities of those accusing him or the witnesses they call to these proceedings outside his purview, all of which flies in the face of the precise language of the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” (see: http://www.law.cornell.edu/constitution/sixth_amendment)
A further method applied in these campus proceedings is to utilize the lowest possible standard of admissibility or “preponderance of the evidence” to legitimize the allegations being made. Again, this absolutely ignores due process of criminal law, in which the highest standard of “beyond a reasonable doubt” must be ruled on by a judge to admit evidence, and agreed upon unanimously by a jury of the citizenry before conviction or sentencing can occur at all.
‘Civil courts use a lower standard of “preponderance of evidence”, while criminal courts use a higher standard of “beyond a reasonable doubt”.’ (See: http://www.legalmatch.com/law-library/article/preponderance-of-the-evidence-vs-beyond-a-reasonable-doubt.html)
Note the distinction, between civil proceedings and criminal trials. This has been the primary entry point used by domestic violence/sexual assault professionals for decades into this netherworld of extra-legal quasi-prosecution of cases that lack sufficient evidence to convict by means of jury trials. In US v Morrison, the Supreme Court found that such an approach was unacceptable as an application of the Violence Against Women Act (VAWA), when a woman who accused two men of assaulting her had seen her allegations denied on the basis of lack of evidence, both by campus authorities and by the local prosecutors’ office. Her legal team thereupon sought to file a federal suit against the alleged assailants, and the high Court overturned an entire section of the 1994 version of VAWA by which Congress had made this a legal option.
Considerations of double jeopardy notwithstanding, the Court unfortunately pursued the politically safe course of overturning a lower court ruling by citing the obscure “Commerce Clause” of the 14th Amendment, while its ruling still left the door wide open for substitute proceedings in the civil arena, with their lower evidentiary standards and their denials of Sixth Amendment rights to the accused, to take the place of due process of criminal law. This approach has been the mainstay of DV/sexual assault activists and legal teams for the entire time since that historic (but weak) ruling in 2000 by the Supreme Court. (See http://www.law.cornell.edu/supct/html/99-5.ZS.html)
There has been another instance in United States history, when bodies politic took it upon themselves to enact a subversion of the Constitution and a refusal to comply with its enumerated powers, and for much the same reason. The South Carolina Convention in 1860 argued that its “right” to assign a lesser status under law to some of its residents, in their case African slaves [and in the case of Dear Colleague policies, males], was sufficient reason to separate itself in a fit of moral outrage from the United States as a whole. Several other States followed this example in short order, and soon thereafter began the bloodiest war ever to be fought on North American soil, not as is popularly believed, to settle the question of slavery itself, but the question of secession.
Does the American college & university system have the right to ignore, by-pass, subvert, and SECEDE FROM the United States Constitution, or does it not?
For the young men about to enter into these institutions, with all the mayhem and licentiousness many of you may look forward to as celebrations of your newfound adult freedoms, I strongly urge you to consider: Finding yourself on the receiving end of a rape allegation, under any of dozens of potential “charges”, alone in a room with no legal counsel, no knowledge of the specifics of the case against you, facing campus administrators not trained on legal proceedings or criminal investigations or forensic examinations, and with the burden of proof on you alone, is not the best time or place to ponder for the first time, the right & wrong of campus secessionism.
Ron Collins is a senior analyst at Framersqool Associates and posts his articles on LinkedIn.