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Don’t fall for the misinformation campaign against due process advocates

By August 28, 2017

Last week, civil rights lawyer Chad Dunn had an op-ed in The Washington Post titled “Don’t fall for the misinformation campaign against Title IX reforms.” But Dunn’s piece is, unfortunately, something of a misinformation campaign in its own right. In it, he mischaracterizes both the arguments of due process advocates and the timing of the spate of lawsuits brought by accused students against their universities, implying that there is some sort of organized campaign afoot to undermine the rights of sexual assault victims. This suggestion could not be farther from the truth, and Dunn’s framing perpetuates the harmful myth that addressing sexual assault on campus is a zero-sum game in which procedural protections for accused students put victims at risk.

A few of Dunn’s arguments, in particular, necessitate a detailed response: 

  • Dunn writes that “Education Secretary Betsy DeVos recently announced that she is reconsidering the guidelines protecting sexual assault victims on college campuses, and opponents of the guidelines have since organized a campaign to support the proposed rollback, including taking the issue to court.” In support of this argument, he points to a Title IX lawsuit filed against Texas A&M last week by a male student who was accused of sexual misconduct. In fact, students accused of sexual misconduct have filed a steady stream of lawsuits since mid-2011 alleging that their universities have denied them a fundamentally fair adjudication process. More than 180 such lawsuits have been filed since the Department of Education’s Office for Civil Rights (OCR) issued its groundbreaking April 4, 2011 Dear Colleague letter, and FIRE — which tracks these lawsuits closely — has seen no indication that the pace of these filings has accelerated since DeVos took office. So it is deeply misleading of Dunn to suggest that these lawsuits are a part of a new, coordinated effort to undermine the rights of assault victims, rather than simply the natural response of students subjected to serious, life-altering consequences without basic procedural protections. 
  • Dunn also writes that “advocates are pressing for reforms that would require survivors to prove a sexual assault occurred under the ‘beyond a reasonable doubt’ standard used in criminal prosecution.” I have been on the front lines of this debate for the past six years, and have yet to meet a single person pushing for the adoption of “beyond a reasonable doubt” as the standard in campus judiciaries. Indeed, the very article that Dunn cites for this proposition does not do so! Rather, the authors of that article — law professors Lara Bazelon and John Villasenor — advocate for the “clear and convincing” standard, which falls in between “preponderance of the evidence” and “beyond a reasonable doubt,” and which a number of top schools used prior to the April 4, 2011 Dear Colleague letter. 
  • Dunn also says, without citing any sources, that although there have been a “handful of unjust outcomes,” “important procedural safeguards are in place to ensure that those few wrongful cases are dealt with.” I wish Dunn had gone into some detail about the nature of the “important procedural safeguards” he has seen. Because in my experience, most schools’ sexual misconduct adjudication procedures are devoid of almost all of the important procedural safeguards that should be present when someone is charged with serious wrongdoing: a presumption of innocence; meaningful and timely notice of the allegations; the ability to engage in some form of meaningful cross-examination; and the active participation of counsel, to name just a few. At many institutions, students accused of sexual misconduct do not even get a hearing before being found responsible.

Dunn goes on to make several points with which FIRE agrees, most importantly that schools should provide support and counseling to students who report being sexually assaulted, and should offer those students “reasonable accommodations” such as changes in housing, class schedules, etc. But Dunn makes it sound as if it is these types of reasonable measures to which due process advocates are opposed, instead of things like doing away with hearings and hauling accused students in for meetings without informing them of the allegations against them. And this simply is not the case.

And finally, FIRE agrees with Dunn when he accurately points out that campus sexual misconduct is not “an either-or problem” in which “one stands for procedural safeguards for the accused or one stands with the victims.” It’s a shame he is distorting the words and actions of those advocating for greater procedural safeguards to suggest otherwise.