Progressive Politicians Two-Faced Over Due Process Rights

For nearly a decade, progressive politicians like Senator Kirsten Gillibrand (D-NY) helped to create a culture that has denied due process protections to college students accused of sexual harassment and assault. Convinced that college campuses had become havens for rapists, Senator Gillibrand and her progressive peers in the Senate helped to usher in new federal requirements under Title IX. An Obama Administration “Dear Colleague” letter was sent to colleges and universities by the Education Department’s Office for Civil Rights on April 4, 2011, mandating new procedures notably harsher toward the accused. But, now that some of their fellow Democratic lawmakers—including Michigan Congressman John Conyers, the ranking Democrat on the House Judiciary Committee, and Al Franken (D-MN)—have been caught in the ever-expanding net of sexual abuse allegations, even some progressive lawmakers seem to be discovering due process protections when it comes to one of their own peers. It is about time—considering the fact that they have been removing the civil rights of an entire class of individuals on college campuses.

Under the draconian Title IX regulations that the Obama administration implemented, hundreds of schools were placed under federal investigation for failing to treat allegations of sexual assault more vigorously. Schools responded by building a campus court system that venerated victims, villainized the accused and often disallowed evidence pointing to the innocence of the accused. On most campuses today, there is no presumption of innocence when an allegation is made. And, in the moral panic surrounding sexual assault, any allegation is considered credible as punitive policies were implemented infringing on the civil rights of those accused. While the Trump administration’s Education Department has attempted to begin to provide some of these protections, not all campuses have followed their lead. Just last week, the United States Department of Education’s Office of Civil Rights charged Catholic University for failing to uphold the rights of an accused male student—in violation of Title IX.

Promoted by feminists, the idea of a “rape culture” on college campuses took hold, and an entire sexual abuse “industry” emerged with progressive politicians the beneficiaries of the largesse of attorneys and other representatives of that industry. There was a great deal of money to be made. Undeterred by data debunking the notion that college campuses had become what Senator Gillibrand (D-NY) has called “havens for rape and sexual assault,” policies were promoted which removed any presumption of innocence for those accused of sex assault. Suggesting that “women are at a great risk of sexual assault as soon as they step onto a college campus,” Senator Gillibrand introduced the Campus Accountability and Safety Act in 2014 requesting additional funds to insure “compliance” with the federal mandates surrounding allegations of sex abuse on campus.

In a letter released on April 4, 2014—two years after the “Dear Colleague” letter arrived on campus, Gillibrand was joined by her progressive peers in the Senate to request yet an additional increase in the $102 million President Obama proposed for the Department of Education’s Office of Civil Rights, to enforce federal provisions regarding sex crimes. The letter was co-signed by Democratic Senators McCaskill, Durbin, Reed Murphy, Blumenthal, Shaheen, Klobuchar, Tester, Boxer, Markey, and Hiromo, as well as two Republican Senators Kirk and Heller. Demanding that colleges and universities comply, the OCR threatened the withdrawal of federal funds from schools that failed to set up elaborate and costly Title IX bureaucracy on each campus—replete with full time Title IX coordinators.

A recent Atlantic article by Emily Yoffe pointed out that Harvard now has 55 Title IX coordinators and Wellesley College has a full time coordinator to oversee sex discrimination on its all-female campus. According to the New York Times, the OCR currently has 496 open sexual assault cases, and the average length of a case is 703 days. Cases against U-Mass and Arizona State have been open for more than five years.

The Gillibrand 2014 letter repeated the erroneous claim that college women were at “a higher risk for sexual assault than their non-college bound peers.” None of this was true. A study released in 2015 by the Bureau of Justice Statistics revealed that the rate of rape and other sexual assault over the past two decades was 1.2 times higher for non-students of college age than for students on college campuses. In fact, campus sexual assault has actually declined from 9.2 per 1,000 college students in 1997 to 4.4 per 1,000 in 2013. Far from being a site of violence, the study found that female college students are safer from sexual assault while in college than at any other time in their lives.

But, the damage was done as the fake data pushed by progressive politicians promoted draconian campus policies that removed due process protections from the (mostly male) accused. The Foundation for Individual Rights in Education (FIRE) recently issued a “Spotlight on Due Process 2017,” a rating of the top 53 universities in the country which revealed that nearly three-quarters (74 percent) of America’s top 53 universities do not even guarantee students that they will be presumed innocent until proven guilty. Fewer than half of the schools (47 percent) require that the fact finders—the institution’s version of judge and or jury—be impartial. Seventy-nine percent of the 53 rated universities received a D or F for protecting the due process rights of students accused of sexual misconduct.

Some of the most elite colleges in the country—including the most prestigious Catholic colleges—received the lowest ratings for providing due process rights to individuals accused of sexual misconduct. Boston College received an F rating for failing to provide a clearly stated presumption of innocence, adequate written notice of allegations, adequate time to prepare for the disciplinary processing including notice of the hearing date, and a prohibition on conflicts of interest that could compromise the integrity of the process. The University of Notre Dame received a D rating. Like Boston College, Notre Dame does not provide the accused with the right to counsel. But, both schools fared better than Washington University in St. Louis which received a zero rating—the lowest score of all 53 schools rated—providing none of the procedural safeguards. Of the 53, none received an A grade but UC Berkeley and Cornell received a B for their policies to protect students’ due process protections.

But, Congressional Democrats seem to be conflicted as to whether members of their own party accused of sexual abuse and harassment deserve due process rights, as Nancy Pelosi recently learned. In an appearance on Meet the Press last week, Pelosi said that Conyers, who is in his 27th term in Congress, deserves “due process” before facing consequences over the accusations of sexual harassment. Ignoring the years of the denial of due process protections to (mostly) male college students accused of sexual abuse or harassment, Pelosi seemed to believe that “We are strengthened by due process. Just because someone is accused—was it one accusation? Is it two?—John Conyers is an icon in our country.” But, Pelosi got so much criticism in the media and from her constituency over her equivocations that she walked back her earlier remarks and is now demanding that Conyers resign.

Others in Congress are not. Fox News reported on December 1, 2017 that representatives from the Congressional Black Caucus are staying firm—at least at this point—in demanding due process for Conyers. But, New York Magazine reported on November 30, 2017 that some individual members of the Congressional Black Caucus have asked Conyers to resign. It has been difficult for some Democrats because of their perception (as Pelosi said on Meet the Press) that John Conyers “has done a great deal to protect women.”

Well, maybe, but not for the due process rights of the accused. As the head of the Judiciary Committee, Conyers contributed to the corrosive campus culture that has created campus “court systems” that venerated victims, villainized the accused, and often disallowed evidence pointing to the innocence of the accused. Conyers and Pelosi have been leaders of a Democratic Party whose political platform calls for an elaborate on-campus court system that is “victim-centered.” The Obama administration’s 2011 “Dear Colleague” letter to college campus leaders stacked the deck against the civil rights of the accused by discouraging cross-examination of witnesses, and in most cases, refused legal representation for the accused.

This is primarily a Democratic Party problem—as is evident in the comparisons of the party platforms of 2016. In contrast to the Democratic Party’s demands for an on-campus court system that has effectively removed the civil rights of an entire class of individuals, the 2016 Republican Party platform demanded that questions of guilt or innocence “must be promptly investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge,” the Obama administration’s policies created a lower standard of evidence to determine guilt as nearly all campuses quickly adopted the “preponderance of evidence” basis for guilt rather than the “clear and convincing” standard they used in the past.

In promoting the Gillibrand policies, Senator Kamala Harris (D-CA) once stated that the Title IX protections surrounding campus sex abuse are “a civil rights issue.” But, like her progressive peers, she has failed to understand that the civil rights of an entire class of individuals on college campuses have been ignored. Perhaps now that the moral panic surrounding sexual abuse allegations has moved to the policymakers who helped to create that panic, we will begin to pay attention to the real civil rights abuses that have been occurring on college campuses.

(Photo credit: Kevin Lamarque / Reuters)

Anne Hendershott

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Anne Hendershott is Professor of Sociology and Director of the Veritas Center at Franciscan University in Steubenville, Ohio. She is the author of Status Envy: The Politics of Catholic Higher Education; The Politics of Abortion; and The Politics of Deviance (Encounter Books). She is also the co-author of Renewal: How a New Generation of Priests and Bishops are Revitalizing the Catholic Church (2013).

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