It’s Time for Republicans to Show They Truly Care About Due Process
In October, Republican senators were the champions of due process. They argued that Supreme Court nominee Brett Kavanaugh must be presumed innocent in the face of the uncorroborated sex-crime accusations that Democrats had rushed to endorse. Forty-nine Republicans (and one Democrat) then confirmed his nomination to the Supreme Court.
“In evaluating any given claim of misconduct, we will be ill served in the long run if we abandon the presumption of innocence and fairness, tempting though it may be,” said Maine’s Susan Collins on the Senate floor in the decisive speech of the confirmation process. “It is when passions are most inflamed that fairness is most in jeopardy.” Senate majority leader Mitch McConnell declared, “totally uncorroborated allegations [must not be] enough to destroy an American’s life.
”Praiseworthy words, and yet congressional Republicans have been almost silent about another mockery of due process: the railroading of hundreds of college students on “sexual misconduct” charges considerably flimsier than those leveled against Kavanaugh. What’s more, fearful of being branded retrogressive on gender issues, they are failing to support Education Secretary Betsy DeVos’s valiant effort to right this wrong. In November, she proposed rules that would go a long way toward instilling fundamental fairness in the campus proceedings that follow an accusation of sexual misconduct. But rather than receiving vocal support from congressional Republicans, DeVos has been left to fend for herself in the face of vitriolic and often wildly misleading attacks from Democrats.
In the House, the only serious support for DeVos’s work has come from outgoing education committee chair Virginia Foxx (R-N.C.), who described the effort to create “reliable and fair procedures” as “crucial.” The proposed regulations, Foxx argues, would undo the “serious damage” caused by the Obama administration’s “arbitrary Title IX guidance.”
The only senator to publicly defend DeVos’s new rule initially was Lamar Alexander, chairman of the Health, Education, Labor & Pensions Committee. The Tennessean, himself a former education secretary, issued a press release cautiously praising DeVos for seeking “to balance fairness and support for survivors.”
On December 6, we asked the other Republicans on Alexander’s committee for comment on the DeVos proposals. Louisiana senator Bill Cassidy, who has previously expressed concerns about the fate of accused students on campus, endorsed her efforts: “Victims and the accused deserve to be treated fairly and receive due process, and I support Secretary DeVos’s work to restore and support these fundamental principles on every campus.” None of the other committee members responded, including Susan Collins, who had been so eloquent about the importance of the presumption of innocence when the accused was a powerful jurist rather than a simple college student.
The record at the state level is equally bleak. New Hampshire governor Chris Sununu, perhaps eager to appease the new Democratic majority in the state legislature, demanded that DeVos withdraw the proposed regulations. “We know,” Sununu asserted, “that 1 in 4 women and 1 in 10 men will be sexually assaulted in college.” In reality, around 1 in 40 women will be sexually assaulted while in college, according to the most reliable survey data.
In New Jersey, a bipartisan state senate committee approved a measure to codify the Obama-era Title IX guidance and create a state “Campus Sexual Assault Commission.” Cosponsored by the state senate’s minority leader, Republican Thomas Kean Jr., the commission will include multiple figures representing the perspective of campus accusers—including at least one “individual who is a campus sexual assault survivor”—but no one specializing in defending accused students or representing a civil-liberties organization. This one-sided commission, Kean promised, would “keep generations of students safe from sexual violence.”
The silence of Republican legislators is all the more unsettling given the concerns repeatedly expressed by high-profile conservative judges about the state of affairs on campus. During oral arguments in September in a case against Purdue University, Amy Coney Barrett of the Seventh Circuit Court of Appeals (she was one of the three finalists for the Court seat Kavanaugh now holds) was shocked to learn that a student was suspended from school and dismissed from the NROTC after a hearing at which the accuser neither appeared nor had to submit an official statement. Sparring with Purdue’s lawyer, Barrett noted, “It was a credibility contest in which you not only did not hear directly from [the accuser], you didn’t even read words that she had written.”
That same month, in a ruling involving a case against the University of Michigan, Amul Thapar of the Sixth Circuit Court of Appeals held that public universities must include cross-examination in campus sexual-assault tribunals. “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story,” Thapar wrote, “but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.”
Thapar’s opinion is one of more than 100 federal and state court decisions since 2011 in which universities found themselves on the losing side in lawsuits brought by students accused of sexual assault. In their rulings, judges have cited pervasive pro-accuser bias among academic officials; secret training of adjudicators to believe accusers even in the face of discrediting evidence; bans on meaningful cross-examination; concealment of exculpatory evidence; designation of a single bureaucrat as investigator, prosecutor, judge, and jury; and numerous other due-process outrages.
The rule DeVos is proposing seeks to end such abuses by requiring unbiased adjudicators and training materials; rights for accuser and accused alike to see the case evidence and the relevant training materials for adjudicators; and the right of accused students to designate agents to cross-examine accusers and other witnesses.
Dozens of Democratic legislators have attacked DeVos’s proposal. Without evidence, California senator Dianne Feinstein tweeted that allowing cross-examination and equal access to evidence would “silence” and “drown out the voices of victims.” Her New Jersey colleague Bob Menendez claimed that the fairer procedures envisioned by DeVos would “discourage student survivors from reporting incidents.”
In the House, presumptive speaker Nancy Pelosi released a statement asserting, absurdly, that the proposed rule “denies survivors due process.” California’s Barbara Lee, who narrowly missed becoming the House’s fourth-ranking Democrat, openly embraced a presumption of guilt and complained that the proposed regulations would remove the burden of proof from the accused. Another California representative, Jackie Speier, accused DeVos of being “intent on putting us in a time machine and taking us back to the Stone Age, when it was okay to drag a woman by her hair.” “We aren’t going back,” Speier promised.
At a time when the campus climate across the nation is quick to “believe the victim” and dismisses due process as part of “rape culture,” DeVos and her team are almost alone in the federal government in showing concern for the rights of the accused. She may, however, soon be getting a potent ally: William Barr, President Trump’s nominee to be attorney general. Last year, Barr offered a blurb for our book The Campus Rape Frenzy. “Male students accused of sexual misconduct are found guilty, and their lives destroyed,” he wrote, “by campus panels operating without any semblance of due process and all too frequently on the basis of grossly inadequate information.” Barr’s willingness to speak out against campus injustices contrasts sharply with the timidity of GOP legislators.
DeVos’s proposed regulations are now open for public comment, and victims’ rights organizations are flooding the process with calls to uphold the one-sided procedures of the last seven years. Congressional Republicans can help thwart this effort by publicly endorsing DeVos’s attempt to create a fairer campus system for all. It would show everyone that their demands for fairness to Kavanaugh go beyond partisan politics.