Books about last fall’s Kavanaugh nomination continue to sell, including the Regnery Press Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court, which tells the story of Supreme Court nominee Brett Kavanaugh’s defense against charges of high school sexual misconduct brought by academic Christine Blasey Ford.
“I believe Dr. Ford!” became his opponents’ refrain – which seemed to confuse accusations with guilty verdicts –skipping trials entirely and inverting centuries’ old principles of due process, including the presumption of innocence.
How did this change to a presumption of guilt happen?
The Kavanaugh drama can actually be traced, in part, to our college culture since 1991, the year Anita Hill’s sexual harassment accusations failed to keep Clarence Thomas off the Court. That culture is most on display in campus Title IX proceedings, which often emulate a Verdict first! Trial later! approach to complaints of sexual assault.
Title IX is the 1972 federal civil rights law that prohibits sex discrimination in educational institutions receiving federal funds. Its uncontroversial text reads in part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
That lack of controversy changed, however, with both the Clinton and Obama Administrations, who saw in Title IX an opportunity to advance more radically feminist goals. In the Clinton era, nondiscrimination began to mean parity of funds for female and male athletics, even when parity of interest did not exist. (Men’s college wrestling teams were replaced with women’s field hockey teams, for example) Under President Obama, the Education Department issued a “Dear Colleague” Letter in 2011, which simply announced a new policy – instead of proposing a new regulation, which receives public input – that “Sexual violence is a form of sexual harassment prohibited by Title IX.”
The Letter then instructed schools on how to process complaints of sexual assault, effectively requiring universities to employ innumerable Title IX officials - from investigators to adjudicators - who then assumed the role of police, prosecutors, juries, and judges, but, significantly, without the due process protections normally afforded the accused in a criminal case. The Letter did not recognize, for example, the accused’s right to counsel, right to cross-examine witnesses, or even the most basic due process right to the presumption of innocence.
Predictably, campus kangaroo court proceedings began across the country. A 2014 adjudication from Miami University of Ohio is a case in point: Students John and Jane Doe admitted to being drunk after a party when they went to John’s room and had sexual relations. Neither filed a Title IX complaint – but a Title IX University official, Susan Vaughn, did. On her own initiative, she brought charges against John only, even though both parties may have violated student conduct codes, which question consent when students consume alcohol. Vaughn then proceeded to sit on the three-member panel to determine John’s guilt, and said to him at one point, “I bet you do this all the time.”
Possibly worse was the case of Joseph Roberts at Savannah State University who received a university email informing him of two accusations of sexual assault and notifying him of his suspension from the school that very day.
Roberts spent years contesting the charges while off- campus, and was only able to complete his degree on-line.
Indignant students and their families have now begun to fight back: Mothers of wrongly accused students founded FACE – Families Advocating for Campus Equality, which points out that schools are not impartial when it comes to Title IX: Not only do Title IX college administrators tend to be feminist types sympathetic to female complainants, they also feel pressure to protect their employer institution from both liability and threats to cut federal funds.
Education Secretary Betsy DeVos has also pushed back on these unfair Title IX practices by rescinding the 2011 Obama guidance and by asking her staff to draft new regulations to protect all parties.
Some wrongly accused students themselves are also taking action: John Doe ended up suing Miami University of Ohio for the due process violations described above and other similarly situated students are doing the same, with notable successes in both the 6th Circuit covering Ohio, and the 2nd Circuit, covering New York.
Perhaps most groundbreaking is a suit filed recently against Michigan State University by a male student who was suspended for 2 years after a Title IX proceeding where the record showed investigator bias and inconsistent accuser testimony. The case seeks class action status on behalf of all such Title IX wronged students. If successful, it could result in courts and schools re-opening many such cases.
While DeVos cannot undo past damage, her Department will hopefully prevent such due process wrongs for students going forward.
The same probably cannot be said, however, for upcoming judicial nominees.
But at least events such as last fall’s Blasey Ford hearings can be seen for the incidents they are: Stops on the “campus to Kavanaugh” Title IX trajectory.