On Tuesday, March 9, 2021, President Joe Biden’s administration began the process to rescind the Department of Education regulations which granted due process rights to college students and faculty if they are accused of sexual misconduct on campus. Prior to these regulations, colleges were free to kick out students or fire employees accused of misconduct without a hearing, or even an investigation into the veracity of the allegations. Indeed, that is exactly what happened.
Since 2011, hundreds of individuals have won lawsuits against colleges and universities around the nation following unproven sexual assault allegations. Even more have settled lawsuits for money damages.
Last year new regulations went into effect which allows those accused of sexual misconduct on campus and threatened with job loss or expulsion from school to defend themselves. Accused individuals have a right to a hearing by an impartial hearing officer, a right to present evidence, and a right to see the evidence against them. Schools must clearly define what standard of proof is necessary to take disciplinary action, and they must apply the same standard of proof to both students and faculty. Schools may no longer require more evidence in a proceeding against a professor than that against a fellow student.
Now, following recommendations from the White House Gender Policy Council, these protections may soon be abolished.
Please understand, I am not trying to defend rapists. I don’t mean to say or even imply that women who speak out against their abusers should not be believed. Sexual assault victims are not just random names on a piece of paper. There is no glory in standing up and telling the world that you were taken advantage of. Social science research shows that only 2 to 10 percent of sexual assault allegations are false. Put another way, 90 to 98 percent of accusations are true. Worse yet, other studies show that over two-thirds of sexual assault victims never report their abuse. This means that by granting additional due process protections to those accused of sexual misconduct, we are granting additional protections to a whole lot of people that have done horribly terrible things, and we are possibly placing additional hurdles in front of victims discouraging them from reporting their abuse.
Nevertheless, these due process protections are important. Benjamin Franklin is often quoted as saying, “It is better 100 guilty persons should escape than that one innocent person should suffer.” This is a sentiment that is reflected in jurisprudence for hundreds of years. Justice is not served when we condemn the innocent. It is a sad reality that humanity is not perfect, and our systems of justice are not perfect either. So we are left with a choice to grant rights to the accused and risk those guilty escaping punishment; or to deny those rights and punish the blameless.
False sexual assault allegations may be statistically rare, but they do occur. A quick internet search will reveal hundreds with the tap of your finger. A well-documented case arose at Amherst College in 2012 when a student made a false rape allegation after feeling guilty having had sex with her roommate’s boyfriend. Amherst kicked the alleged perpetrator out without allowing him an opportunity to defend himself. Text messages of the alleged victim came to light later which proved she fabricated the rape allegation and further showed that she may have unlawfully taken advantage of her alleged rapist while he was too intoxicated to understand what was happening.
I find it interesting that if the president himself were refused the same protections that his administration is seeking to deny to college students, then he would likely be presumed guilty of rape. Instead, after President Biden’s former intern Tara Reade accused him of sexual misconduct, we were told the allegations were false, and that her allegations, along with those of seven other women, could not be supported by evidence.
The decision to expel a student from a university is life-altering, and it should not be made callously or arbitrarily. Wrongfully expelled students lose scholarships, job opportunities, and years of their life without a chance to defend themselves. We can believe victims and protect the rights of the innocent at the same time. This is not a zero-sum game. The Biden Administration should maintain the current rules granting due process rights to college students.
John Judkins is a Greenfield attorney.