New Book Takes Thorough Look at College Due Process Problems

Brooklyn College professor KC Johnson and journalist Stuart Taylor, Jr. cover an impressive amount of ground in their new book, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities. Readers who are less familiar with the problem of colleges and universities trampling on students’ due process rights—particularly in the context of sexual misconduct adjudications—will find a helpful and thorough history of the expansion of Title IX over the years. Readers who can already rattle off a list of cases in which campus hearings were fundamentally unfair will likely encounter horror stories that are new even to them.

Here’s just a small sampling of the cases Johnson and Taylor share: When a student at a “small Midwestern campus” was expelled for an alleged sexual assault, his findings letter “fail[ed] to specify what [the respondent] supposedly did” that was not consensual. An investigator at Georgia Tech found a student responsible for an alleged assault despite reaching the conclusion that “it is reasonable to believe that based on the nonverbal action of [the accuser] that [the accused student] believed he had consent.” A student accused of “dating violence” at Colgate University was “locked in the back of a campus safety vehicle and then confined in the basement of [Colgate’s] Curtis Hall before he even knew the charges against him, after he refused a one-way ticket to his native Bangladesh.”

The book is also jam-packed with insight from the country’s most prominent due process advocates, including Harvard Law School’s Jeannie Suk Gersen, Jacob Gersen, and Janet Halley; senators James Lankford and Lamar Alexander; and, of course, FIRE staff. Johnson and Taylor take care to repeatedly emphasize that procedural safeguards in campus hearings—as in the courts—benefit all parties.

“The due process protections that exist in the civil system and in the criminal system,” [attorney Joshua] Engel observed, “did not spring out of the earth and are imposed on parties for an arbitrary reason. They’re there because we believe that they’re valuable in the truth-finding process. So every time that you move away from one of these ideas—one of these protections—that are considered . . . a core due process protection, you lose some truth-finding process[.]”

As Johnson and Taylor explain,

the people who investigate felonies need legal and forensic evidence-gathering tools that Title IX offices do not have: search warrants, subpoenas, powers of arrest, legal firearms, the penalty of perjury for false testimony, and so on. With none of these tools, campus sexual assault investigators will almost always have less evidence and weaker truth-finding abilities than law enforcement.

But worryingly, this point is lost on many. The book describes case after case of investigators failing to consider exculpatory evidence, accused students being prohibited from questioning their accusers and witnesses, and unfair proceedings being conducted with no reliable record for students’ lawyers to work with when they try to help students find justice in the courts.

The book also relays some of the past six years’ most staggeringly straightforward rejections of due process, with campus administrators asking, “Why could we not expel a student based on an allegation?” and asserting that the Constitution “doesn’t supersede” Title IX. Across the country, those charged with handling accusations of sexual assault maintain attitudes at odds with principles of fundamental fairness. Here’s one example:

Bill Haggard, [University of North Carolina]-Asheville’s vice chancellor for student affairs, faulted his state’s elected representatives for failing to understand that “a key component of the developmental process of responding to student misconduct is for the student to take responsibility for their [sic] own behavior and to learn from the incident.” It seemed never to have crossed Haggard’s mind that an accused student may have done nothing wrong for which to “take responsibility.” He also celebrated accused students having the “learning experience” of defending themselves, without counsel, against accusations that could (be they innocent or guilty) ruin their lives.

As the authors note, “Attacks on free speech have proliferated in tandem with attacks on due process for accused students.” Accordingly, Johnson and Taylor briefly review the risk to freedom of expression created by the federal government’s over-enforcement of Title IX, including the University of Montana “blueprint” definition of sexual harassment.

It’s not all bad news, though. The authors include in their book several recent court rulings that acknowledge the danger of recent university policy trends like single-investigator models and “affirmative consent” standards. On single-investigator models, for example:

As U.S. District Judge F. Dennis Saylor noted in March 2016, “The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.”

There’s much, much more on each of these topics and others in Johnson and Taylor’s book, so I recommend picking up a copy and reading it in its entirety. For even more on campus due process and the authors’ reflections on writing this book, check out The Daily Wire’s interview with Taylor and the duo’s posts this week at The Volokh Conspiracy, hosted by The Washington Post.