Op-Ed: Judges for Betsy DeVos
Democrats are melting down over the Department of Education’s proposed Title IX reforms, and you’d think Secretary Betsy DeVos had declared open season on college women. But the secretary’s ideas won implicit support last week when another court rebuked university administrators for violating the due-process rights of someone accused of sexual misconduct.
Smock v. Regents of the University of Michigan involves a professor who has taught courses on gender, sexuality and family for more than 20 years. Pamela Smock’s woes began in April 2016 when she questioned whether a Ph.D. student had committed plagiarism. That student and two fellow grad students then accused Ms. Smock of sexual harassment.
After an eight-month investigation, Michigan’s Title IX officials concluded Ms. Smock had not fostered a sexually hostile environment. But a university dean, Andrew Martin, cited the Title IX report and claimed that even if Ms. Smock’s behavior wasn’t sexual harassment, it was still “inappropriate, unprofessional, and has had the effect of interfering with students’ opportunity to study and learn.” The alleged bad behavior included asking a student’s spouse for help in backing out of a parking lot and a joke referencing the movie “The Shining.”
The school then launched separate disciplinary proceedings, and it imposed a three-year freeze on Ms. Smock’s pay and sabbatical and forbade her from meeting with students outside professional settings or serving as their primary doctoral adviser.
Ms. Smock sued, and last week federal Judge Arthur Tarnow rebuked the university for denying her due process. The judge ruled that Ms. Smock’s “inability to challenge her accusers’ credibility was complete: their identities were undisclosed.” He added that Ms. Smock “did not receive notice of the charges against her until halfway through the [grievance] hearing,” giving her no chance to prepare a defense.
“Both of these shortcomings compound the inherent unfairness of charging [Ms. Smock] twice for the same conduct after she was acquitted the first time” by the Title IX adjudicators, Judge Tarnow concluded, allowing the case against the university to proceed.
Judge Tarnow invoked the precedent of Doe v. Baum, in which the Sixth Circuit Court of Appeals said in September that the University of Michigan had violated due process by denying a student accused of sexual assault the chance to cross-examine witnesses.
With the proposed Title IX rule, Secretary DeVos is seeking to prevent similar injustices and court cases. The new rule would mandate that all Title IX hearings include cross-examinations, either in person or by live stream. That would let adjudicators assess the demeanor and credibility of witnesses. Universities would also have to keep the alleged victim and the accused informed about the investigation and any expansions in scope, giving the opportunity to inspect and review all evidence.
Today’s progressives believe that identity politics trumps due process, but at least the courts are holding fast to American legal norms. Mrs. DeVos deserves credit for fighting for those same bedrock values.
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