How Schools Can Stop ‘Civil Rights’ Trampling Due Process

September 24, 2015

By Ashe Schow at Washington Examiner

In the ongoing discussion over campus sexual assault, the term “civil rights” is often thrown around to justify the evisceration of due process rights of accused students.

During a recent hearing on the issue, Lisa Maatz, vice president of government relations at the American Association of University Women, repeatedly referred to the need for colleges to create pseudo-court systems (my words, not hers) as a “civil rights” issue. In her prepared testimony, Maatz emphasized the role of colleges in adjudicating campus sexual assault.

“Schools’ role in responding to campus sexual assault is essential,” Maatz said, “because students’ civil rights – the opportunity to pursue their educations free of sex discrimination — are on the line.”

But here’s the thing: The civil rights of accusers — this right to an education in an environment where they don’t have to see men they accuse — can probably be protected without trampling the civil, legal and constitutional rights of accused students. Unfortunately, that’s not how things are currently done.

One way to accomplish this would be to let police and prosecutors handle the issue, as many in the criminal justice system have advocated. The justice system ensures that those found guilty of rape are removed from society, instead of just kicked off campus and left to prey on other victims. If police and prosecutors handle these cases, the real-world court system will protect accused student’s rights. It will also mete out punishments that are appropriately severe. Sexual assault is, after all, a crime. Perpetrators need to be held legally accountable.

But this logic falls apart if the real reason for the current ad hoccampus court system is to expel more students for political reasons rather than to actually combat a crime.

Maatz testified that by using a lower standard of evidence than at criminal trials — a preponderance of evidence, allowing administrators under federal pressure to be just 50.01 percent sure an assault was committed — is acceptable, because that’s the standard used in civil trials. But what Maatz failed to note is that civil trials also provide rules of evidence, discovery, right to effective counsel (not just a lawyer sitting silently in the background), subpoena power and sworn testimony. In civil court, there are safeguards against wrongful accusations. But such safeguards make it more difficult to convict without evidence, and so the activists are not fans of that system, either.

Joseph Cohn, the legislative and policy director for the Foundation for Individual Rights in Education, pointed this out at that hearing. In an interview with the Washington Examiner, he also described how colleges trample the rights of accused students in favor of protecting the civil rights of accusers.

“At the end of the day, [colleges and universities are] having students talk about conduct that exposes them to criminal liability without the benefit of legal representation; without a lawyer who can interject and advise them along the way or speak on their behalf,” Cohn said. “That is an automatic recipe for seeing due process violated, but other constitutional aspects of due process — the Fifth Amendment and your ability to not say things on the record that implicate yourself.”

He added that accused students in these proceedings are “not talking to someone who has legal privilege,” meaning whatever is said can be subpoenaed later on by police and prosecutors. One police officer even bragged about using these campus hearings in order to circumvent due process in criminal trials.

Colleges and universities can protect accusers from reprisals as they continue their education by making temporary changes to class schedules or living situations. But if an accuser still feels frightened that she (it’s almost always a she) will run in to the accused student on campus, that seems like an argument in favor of involving the police and obtaining a restraining order from a real-world court of law.

Schools can play a productive role in helping students who say they have been assaulted — by assisting these students through the legal system. But that would decrease the likelihood of punishment, since evidence and credibility are required in criminal and even civil trials.

Advocates will continue to discuss the “civil rights” of accusers. But in the course of upholding them, schools should not trample the rights of accused students, as they do on campuses across the country right now.