LANDMARK JUDICIAL DECISION ON THE ACADEMY'S HOSTILITY TO DUE PROCESS STANDS

This post is long overdue--consider it a victory lap. Today, the U.S. Supreme Court refused to take up the case of John Doe v. Purdue, a 2019 decision of the Seventh Circuit Court of Appeals that is, perhaps, the most important case dealing with the hostility to due process rights of presumptively innocent students accused of college sexual assault. The decision was decided in 2019 by a Seventh Circuit panel of three female jurists, and now we know that the high court won't undo it. According to Newsweek earlier today: "In a decision siding with the student, the appeals court agreed that the university violated his right to due process and engaged in gender discrimination under Title IX. In an opinion and order . . ., the panel said it was 'plausible' that Purdue's investigation panel 'chose to believe Jane [Doe] because she is a woman and to disbelieve John because he is a man.'" 

Although we had nothing to do with this decision, it vindicates the concerns we expressed on innumerable occasions about the academy's hostility to due process when it comes to sexual assault. Due process is the greatest bulwark against tyranny ever devised, and sexual assault should not be politicized. That's the message of this blog. Sadly, sexual assault has been politicized--and the hostility to the presumptively innocent has seeped into our culture. We have often chronicled how that hostility manifests itself--for example: the widespread insistence that people must "always believe" the accuser for this one, particular offense (because in the past, it is a fact that women often were not believed unless the accusation was lodged against minority men and boys); trivializing the harm to the wrongly accused and treating their victimization as collateral damage in the war on sexual assault (the unfounded fear is that highlighting their stories somehow diminishes the war on sexual assault); and demonizing masculinity itself with the “rape culture” meme (a meme that even RAINN, the leading anti-sexual assault organization, has condemned). We believe that accusers should always be treated with respect and not skepticism unless it is proven that they lied, and they should always be afforded all the assistance they need to recover, but there should never be a rush to judgment based on an assumption that an accused party is guilty. How is this in any sense controversial or extremist thinking? It's perfectly fair and rational by any measure. 

Hostility this widespread has consequences--and this hostility has had disastrous effects on one segment of our society. We explained many times how this hostility found its way into the media's coverage of the issue and, worse, in public policy, manifesting itself in government orders and university rules and regulations. The hostility was most starkly articulated in the infamous “Dear Colleague” letter issued by the Department of Education in 2011--a fiat handed down without the usual procedures for enacting regulations. It ordered that the due process rights of the presumptively innocent be diminished in very significant ways, most notably in lowering the standard of proof for this one offense only. The goal was to increase expulsions, and the schools were threatened with the loss of federal funding in the event of noncompliance. College administrators obediently marched in lockstep and changed their rules. The rights of the accused were seriously diminished. So, our principal goal, aside from telling the stories of the wrongly accused, became to spread awareness about the draconian measures in the academy as articulated in the "Dear Colleague" letter and in similar measures. This became our primary mission. 

But then, the dam burst. Finally. By 2014, the message that we and many others had preached had gained wide acceptance among very serious people. As but one example, an emphatic letter was signed by 28 Harvard law professors voicing strong objections to the school's sexual misconduct policies. It noted that "Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation." Read it again--the letter was chilling--this was, after all, Harvard, among the most respected schools on the continent. Many other serious voices--including law professors from Penn, Cornell, and elsewhere--also took up the cause. 

The head of the National Center for Higher Education Risk Management (NCHERM), the leading risk management organization that has shaped American colleges' sexual assault programs--probably the best friend that sexual assault victims have--wrote a landmark open letter stating "that a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” He said the reaction borders on "hysteria." He added that "in a lot of these cases, the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to, and that doing so is what" the Department of Education wants. And that in "case-after-case . . . sincere victims believe something has happened to them that evidence shows absolutely did not . . .." And: "We see complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen."

And then finally--after six years--the Department of Education rescinded the "Dear Colleague" letter and the harsh rules that it had previously mandated. Colleges, however, clung to the "Dear Colleague" letter's rules--so it's little wonder that litigation exploded: hundreds of lawsuits were filed by the presumptively innocent who had their rights taken from them in the wake of the “dear colleague” letter. It was like an explosion of litigation. Many of these suits were successful. Prof. KC Johnson has compiled a list of student victories in due process cases filed after the "Dear Colleague" letter: Post Dear-Colleague Letter Rulings/Settlements - Google Sheets 

As one law professor explained:

Former and suspended male students . . . soon responded with lawsuits brought against the universities and their employees coordinating or dispensing the Title IX verdicts. The early cases initiated a wave of litigation resulting in over six hundred similar legal proceedings between 2012 and 2020. Customarily identified by the pseudonym "John Doe," the plaintiffs sought reinstatement with judicial declarations vacating the campus disciplinary rulings that had branded them sexual predators. The allegations of the John Doe lawsuits revealed collegiate systems that equated the filing of the Title IX complaint with the male's guilt. Similarly emerging from the John Doe allegations was a portrait of disciplinary proceedings that consistently afforded the accused male only little semblance of due process in the investigation and rendition of final determinations on the Title IX complaints. The wave of John Doe lawsuits culminated in 2018 through 2020 with a series of federal appellate court decisions. Several of the federal circuits reprimanded educational institutions for conducting proceedings with deprivations of due process. Ironically, the federal opinions recognized reverse gender discrimination against males in the campus sexual harassment proceedings as plausible claims under Title IX.

Andrew F. Emerson, WILL DUE PROCESS BE RETURNED TO ACADEMIC SUSPENSION?: AN ANALYSIS OF ACADEMIA'S REJECTION OF THE TITLE IX FINAL RULE, 71 Cath. U.L. Rev. 105, 109 (2022).

The high-water mark might have been the aforementioned Doe v. Purdue decision, though there have been other ones, too. So, the hostility to due process is now front-and-center: campus sexual assault organizations, which set policy at the schools, is pitted against the United States Constitution, federal courts, law professors, and many others. It isn't just a bunch of noisy writers any longer. There is little question that our blog played a role in helping to spread the message that got us to this point--our internet reach had been significant, and we know that we helped raise awareness about this issue in some important organizations based on correspondence we received.  

So, yes, this is a victory lap. At times, some extremists had accused us of being extremists--though they could never refute a single thing that we wrote--simply because we had the audacity to highlight this problem (they thought highlighting it gave it outsized importance--and therefore we must be silenced by marginalizing us). We criticized them, we mocked them, and that, no doubt, irritated them. We knew we were right, and the avalanche of impartial and significant voices that have voiced similar concerns proved it. By the time Betsy Devos became secretary of education, we knew that the problem would be addressed as much as possible in the current climate, and the need for his blog no longer seemed dire. In short, it seemed that we had done as much as we could do. One wrongly accused fellow had asked that we remove his story because he wanted to start a new life--he was polite, and I understood. On top of that, I didn't have time to do it right. It seemed a good time to mothball the blog.

But that may not have been the right call. This blog can still serve important purposes. The forces hostile to due process have been hard at work since Ms. DeVos left office, and they need to be challenged. Beyond that, this is a space for people who have been wrongly accused of serious criminality and whose stories are ignored. Not infrequently, these are college students falsely accused of sexual assault. In the past, we received notes from young men who told us that our blog was instrumental in their decisions not to take their own lives--they saw that they were not alone. Their victimization is often trivialized, and their stories dismissed. That, alone, is reason enough why this blog should not be mothballed. So, the goal is to preserve the blog--make it go public again--to preserve the stories that ought to be preserved and to tell new stories. We'll add onto it over time, one case at a time. I was just one of several writers of our blog in the past--it was just a "hobby" for all of us. Various posts have been deleted over time because the issues should not be politicized, and because there was too much clutter. We rarely missed a chance to skewer the warped thinking of those fomenting the hostility of which we speak--some of it was funny; some, over-the-top. There's little time for that now. So, we'll go through our old posts to fix bad links, etc. and have it up and running again. That'll take some time to accomplish. 

Every civilized society must strive to eradicate heinous criminality by punishing offenders, but it also must ensure that the innocent aren't punished with them. The latter concern is often diminished in the public discourse. Accusations of serious criminality, especially alleged sexual wrongdoing, are often their own convictions in the court of last resort--the court of public opinion--because the stigma is so severe, and because definitively proving innocence in a disputed sex case often is impossible. This blog is going to tell the stories of the wrongly accused, one case at a time.

We condemn the extremists who would deny due process, but these extremists are not representative of the feminist community (though as with all groups, the most strident are sometimes given too much prominence). The reality is that in days long gone, crimes of sexual assault too often were swept under the rug on college campuses, especially in athletic programs, and elsewhere. In too many places, people turned a blind eye to sexual misconduct. Slowly, the feminist community was able to raise awareness about these issues, and the rights of victims were finally addressed in meaningful ways. The progress they've made should not be denied, but there's still plenty of work to be done, and we should all be a part of it. Given what might be called an entrenched culture of sexual entitlement (e.g., the other-worldly Penn State sex abuse scandal), is there any wonder that there's a hostility to due process for the accused on college campuses and elsewhere? Pleas for due process sometimes have appeared to be a shield to return to the old regime of entitlement and of automatically disbelieving the victim--returning to the old regime must be guarded against at all costs. 

But the hostility to due process has become institutionalized, and that's a problem. So, we need to be more sensitive to the reasons for the hostility to due process while, like those 28 liberal Harvard professors referenced above, insisting that due process be restored where it has been diminished.

Our mission is simple. All of us need to battle the social evil of rape and to support the wrongly accused. It is not a zero-sum game, but it is a delicate balance. Every wrongful sexual assault claim does grievous harm to the victim of the wrongful claim and diminishes the integrity of every sexual assault victim. Every wrongful conviction is a grave sin against the wrongly convicted and it undermines public confidence in the way sexual assault is handled--it makes juries that much more reluctant to convict those deserving of conviction. The horror of sexual assault should never be trivialized, and due process should never be considered a luxury that society can't afford. 

Each case must be assessed on its own merits--with due process as the polestar--and not based on what has happened in other cases or on the prevalence of false claims or any other extrinsic matter. The parties in each case are not stand-ins for larger issues. That is a point that cannot be overemphasized.

This is a very divisive topic, but emotions don't resolve legal disputes and emotions should not set public policy. Prof. Mark A Godsey of the Innocence Project once said that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases."  The hanging trees of the Old South attest to what happens when "outcry" is substituted for justice.

We're going to be adding to this blog whenever we have the time--one case at a time with extended posts that will be linked on the left side of the page. First up, the Hofstra false rape case--see the link on the left side of the page. It's a tragic tale of young minority men caught up in a rape lie after an evening of less than admirable, but legal, behavior. There are other stories that deserve extended discussion--Brian Banks and the Rolling Stone false rape claim among them. Many of the victims of the false claims are from marginalized communities--they have no voice, no resources to hire the best attorneys. We're also going to give voice to the wrongly accused in the clergy--few people have been so stigmatized due to the heinous misdeeds of other members of their group.

And here's perhaps the most important point: merely telling the stories of victims of wrongful accusations does not excuse the many who are guilty. It does not excuse the culture of sexual entitlement that is too prevalent in some spaces (certain--by no means all--athletic programs and fraternities). We could argue all day about the prevalence of false rape claims--our point has always been that there is way too much sexual assault, and that though no one knows for certain how many false claims there are, there are enough to make it a real issue. That is a silly debate.  

Hopefully, the stories we tell shine a light on the reasons for false claims so that they can be addressed. For example, one reason is that accusers feel pressured to defend the traditional feminine role they feel they've been assigned--"nice girls" don't sleep around, etc., so they lie to maintain the facade. So, keep watching this space.