Contrary to campus conventional wisdom, the Turner case shows that the best way to deal with a campus sexual assault problem is to rely on law enforcement professionals to protect women and to pursue justice, not on campus disciplinary systems run by amateur sex bureaucrats.

The backlash against Turner’s sentence is being exploited by a powerful but misguided movement to delegitimize law enforcement as the best way to handle campus sexual assaults. The accusers’ rights group Know Your IX has claimed that even reporting an assault to police could harm campus victims. “#copsoffcampus,” the group recently tweeted.

A myth that our universities are mired in an epidemic of sexual violence fuels this movement. Campus activists, the Obama administration and many in the media have used discredited surveys claiming that there are hundreds of thousands of campus sexual assaults annually to degrade due process protections for accused students.

Why this California judge faces a recall effort Play Video1:43
Santa Clara County Superior Court Judge Aaron Persky could be removed from the bench in a recall effort prompted by the six-month sentence he handed down in the Stanford sexual assault case. (Gillian Brockell/The Washington Post)

Still, the 4,959 rape allegations reported by universities in 2014 alone are more than enough to call for the best possible protections. And the handling of the sexual assault by Turner in January 2015, while his victim was lying helpless on the ground outside a campus party, shows how those protections can work.

Two students saw Turner on top of the victim, rushed to her aid and restrained the intoxicated Turner. Police were called and found the now 23-year-old victim “completely unresponsive” and partially clothed. They interviewed the witnesses and secured physical and medical evidence. Prosecutors won a jury conviction of Turner, now 20, for sexual penetration of the victim with his fingers. They asked Santa Clara County Superior Court Judge Aaron Persky for a six-year state prison sentence.

We understand the victim’s pain and outrage at the leniency of the judge’s sentence — six months in a county jail, plus three years probation and lifetime registration as a sex offender. But we also understand how much better the criminal-justice system operated than the alternative likely would have.

Campus activists at Stanford and nationwide have championed secretive disciplinary processes run by administrators who know little about gathering evidence (or about fair procedures). Indeed, had this case been initially channeled through the school, critical evidence — including Turner’s highly incriminating statement to police — might have been lost.

The Obama administration now requires schools to use the lightest possible burden of proving guilt — by a mere preponderance of the evidence — in handling sexual assault cases. The procedural rules are systematically slanted against the accused. And accusers are not subject to meaningful cross-examination, which the Supreme Court has called “the greatest legal engine ever invented for the discovery of truth.”

The result has been the expulsion as sex offenders of many innocent or probably innocent students — in dozens of cases that we have studied — as well as guilty ones. The innocent face lives ruined by terrible injustice. The guilty often go free, expelled from school but walking the streets having faced no criminal penalty at all. Such outcomes do less to make campuses safe than would the robust law enforcement presence that accusers’ rights activists and university leaders oppose and that brought Turner to justice.

Stanford’s disciplinary process for sexual assault accusations prevents the accused and his representative from cross-examining the accuser or any other witnesses. Adjudicators have been trained that an accused student’s acting “persuasive and logical” should be considered a sign of his guilt, and warned to be “very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence.”

By contrast, in the Turner case police and prosecutors did what they do best. The defendant was presumed innocent until proven guilty beyond a reasonable doubt. He had a lawyer who could test the credibility of all witnesses, a right to exculpatory evidence, an impartial jury of his peers and other protections against wrongful conviction. The public nature of the trial provided a check against misconduct, either by law enforcement or by the university.

Despite criticisms of the sentence, Persky appears to have presided fairly during the trial. He based his sentence on the recommendation of the probation office, a common approach for judges. While Santa Clara County District Attorney Jeff Rosen sharply disagreed, he has also condemned the recall drive mounted against Persky.

Yes, six months is too short a jail term. But it may also be the least of Turner’s punishments. The stain and notoriety of his crime will mark this champion athlete turned registered sex offender for the rest of his life, everywhere he goes. As it should.

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This headline, on The Washington Post’s long Sept. 21 article about a large survey of students at 27 public and private universities across the country college, is false. Although the survey, by the Association of American Universities (AAU), was itself deliberately designed to exaggerate the number of sexual assaults on campus, even the AAU said that “estimates such as ‘1 in 5′ or ‘1 in 4′ as a global rate” across all universities is [sic] oversimplistic, if not misleading.”

This is not to suggest that The Post misrepresented the AAU survey’s findings any more than did most major news media. Such advocacy-laden surveys on campus sexual assault — and breathless media reports overstating their already exaggerated findings — have become the norm in this era of hysteria about the campus sexual assault problem.

The problem is no doubt serious, if shrinking. But it has been vastly exaggerated by the Obama administration, anti-rape activists, their media allies and universities pandering to them. It’s no surprise to see the AAU joining this chorus.

Below are three ways in which the 288-page AAU survey report is grossly misleading, as are others like it and the credulous media coverage of them all.

First, the extraordinarily low response rate of students asked to participate in the AAU survey — 19.3 percent — virtually guaranteed a vast exaggeration of the number of campus sexual assaults.

Even the AAU acknowledged that the 150,000 students who responded to the electronic questionnaire were more likely to be victims of sexual assault than the 650,000 who ignored it because “non-victims may have been less likely to participate.”

Start with the fact that 60 percent of the 150,000 students who responded were female, even though half of all students at the surveyed schools were male. Then ask yourself whether you would be more likely to take the time to respond to such a survey if you were a sexual assault victim or if you were not.

Then, to resolve any doubt that the respondents were far from representative of the nation’s college students, consider the facts buried in Tables 3-2 and 6-1 of the AAU survey.

These tables indicate that about 2.2 percent of female respondents said they had reported to their schools that they had been penetrated without consent (including rape) since entering college. If extrapolated to the roughly 10 million female college student population nationwide, this  would come to about 220,000 student reports to universities alleging forced sex over (to be conservative) five years, or about 44,000 reports per year.

But this would be almost nine times the total number of students (just over 5,000) who reported sexual assaults of any kind to their universities in 2013, the most recent data available, according to the reports that universities must submit to the federal government under the Clery Act.

People who experience some kind of incident without reporting it don’t affect the validity of this calculation because none of them (assuming honesty) would be among the 2.2 percent who told the researchers that they had reported to authorities, and all of the 2.2 percent should show up in the Clery Act submissions.

The AAU does not mention this devastating flaw in its methodology.

 The AAU also acknowledged that the huge differences in its estimates of sexual assault rates at the 27 schools — ranging from 13 to 30 percent — make it impossible to provide an accurate estimate even for those 27 schools as a group, let alone the more than 7,000 other colleges in the country.

Second, the AAU classified as sexual assault or misconduct a far broader range of behaviors than does the criminal law or common understanding, in order to get big numbers such as the claim that 23.7 percent of female respondents told researchers they had experienced “sexual assault and sexual misconduct due to physical force, threats of physical force, or incapacitation.”

A more reliable estimate came in 2014 from the Justice Department’s annual National Crime Victimization Survey: No more than 1 in 160 (0.6 percent) of college women per year — or 1 in 32 (3 percent) over five years — are sexually assaulted.

But the AAU, mimicking other agenda-driven surveys, asked respondents questions such as whether they had experienced “forced kissing,” unwanted sexual “touching” (which could include attempted close dancing while fully clothed), “promised rewards” for sex, threats to “share damaging information about you” with friends, and the like. Then the AAU counted every “yes” answer as a sexual assault (or “misconduct”).

In addition, about half of the students who were counted by the AAU as victims of sexual assault were so classified because they answered yes when asked whether anyone had penetrated or sexually touched them when “you were passed out, asleep, or incapacitated by drugs or alcohol” — which could be seen as including moderate intoxication.

Worse, the AAU also tallied as victims all respondents who said yes when asked whether anyone had sexually touched them “without your active, ongoing voluntary agreement” — for example, attempting more intimate contact “while you were still deciding.”

No criminal law in America requires such “affirmative consent” to make sex lawful, although some (not all) universities have recently moved in that direction.

To borrow from an admission buried in The Post’s huge package of articles in June about a very similar Post-Kaiser poll, the effect of the AAU survey questions was to paint a “dramatically” more dire picture than would questions using “terms like sexual assault and rape” — which the AAU studiously avoided.

Third, a red flag should go up for any reporter or other reader who notices the AAU’s acknowledgment that — for the vast majorities of poll respondents who said they had not reported to campus authorities the events that the AAU classified as sexual assaults — “the dominant reason was it was not considered serious enough,” (emphasis added).

 More astonishing still, 75 percent of respondents who told researchers that they had been “penetrated using physical force” said they had never reported this to authorities — and 58.6 percent of that 75 percent said they “did not consider it serious enough” to report.

This most plausible explanation is that most of those classified by the survey as “victims” of sexual assault or rape did not really think that they had been sexually assaulted.

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In 2003 — as today — the court was closely divided on affirmative action policies, and as the “swing” vote, O’Connor played a central role in shaping the decisions. While O’Connor had usually voted against racial preferences on such issues as contracting and hiring, from her first such votes in the mid-1980s through the 1990s, she took a different approach in 2003, in her first case involving university preferences. O’Connor held that because of the compelling interest colleges and universities had in a diverse learning environment, racial preferences were permissible if they met some specific restrictions: Race alone must never be the “defining feature” of an application; no racial group could be “insulated” from competition with other applicants; schools must carefully consider race-neutral alternatives in pursuing diversity and must phase out the use of race as quickly as possible. In Gratz, O’Connor joined one set of justices in finding that the University of Michigan’s undergraduate admissions had violated these and similar principles by awarding every black and Hispanic student a specific number of points based on their race; but in Grutter
she found that the university’s law school, which used a more subjective process, did not.

Even when O’Connor wrote the majority opinion in Grutter, there was a good deal of skepticism about how seriously she took her own restrictions, because aside from the absence of a specific race “formula” at the law school, the law school seemed to violate O’Connor’s principles at least as much as the undergraduate college admissions process invalidated in Gratz did. There was, for example, virtually no evidence in the record that the law school had ever seriously considered race-neutral methods of achieving student diversity or even given meaningful weight to such factors as a student’s socioeconomic background (the college, in contrast, gave points to a wide variety of background factors). Justice Anthony M. Kennedy wrote in dissent that O’Connor’s opinion had effectively abandoned strict judicial review of the university’s use of race because, while laying down strict tests, it gave only “perfunctory” attention to whether the law school met them.

A key question following Grutter and Gratz, then, was whether universities would take O’Connor’s words seriously, and start to narrow and reform their use of racial preferences, or whether they would instead take the decisions as a signal that court supervision of preferences would be lax, so long as they did not use explicit formulas or point systems in administering preferences.

The available evidence suggests that most colleges and universities have followed the second path; indeed, racial preferences have become larger and more mechanical than before Grutter.

At the University of Michigan’s undergraduate college, the school quickly scrapped its point system. But our analysis of its 2006 admissions patterns found that racial preferences were clearly much larger than before Grutter, and race was more often the “defining feature” of an application. If we compare Asian and black students with similar test scores and grades, for example, blacks had a 96 percent chance of admission in 2006, compared with 11 percent for Asians. The college used more racial categories in evaluating applicants after Grutter and paid less attention to socioeconomic background.

Our analysis of a sample of public law schools before and after Grutter shows much the same pattern: The effective weight given to black applicants based on their race went up at schools around the country, and the room left for consideration of non-racial forms of diversity went down. Post-Grutter, many law schools have automatically admitted every black applicant whose LSAT scores and college grades meet some minimal threshold, while turning down 90 percent of white applicants with the same qualifications.

We see little room to doubt that universities have taken Grutter and Gratz as a green light to pursue racial preferences even more aggressively than before. The most memorable line in O’Connor’s Grutter opinion was her expectation that racial preferences would disappear by 2028. With nine of those 25 years already past, and preferences more entrenched than ever, it is not surprising that a majority of the justices think the time is ripe to revisit this issue.

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And why do all of the justices so often find in the Constitution a mirror image of their own political and policy views on issues as diverse as abortion, race, religion, gay rights, campaign finance, the death penalty and national security?

The justices strenuously deny voting their own policy preferences. So, are they insincere?

Well, no, except that none admits that interpreting the Constitution is an inescapably subjective enterprise in which policy and political preferences unavoidably play a big part. This is especially true at the Supreme Court, which is not strictly bound by its own precedents.

Even a rigorously apolitical justice passionately committed to "applying the law" would often find no clear law to apply.

Conservative (and some liberal) "originalists" are correct in saying that justices who seek to override the text and original meaning by invoking the "living Constitution" have nothing to guide them but their own policy preferences — and precedents, which can be overruled.

But originalists cannot avoid subjective judicial policymaking, either, for at least four reasons.

First, there has never been a consensus on the original meaning of expansive constitutional phrases such as "due process of law" and "equal protection of the laws," or on how to handle the tensions among various other provisions. The Framers themselves often differed on how to apply the Constitution to specific cases.

Second, any consensus that may have once existed about the meaning of the most important provisions has been erased by time and by the revolutionary changes in the way Americans live.

Consider the landmark 5-to-4 ruling in 2008 that the ambiguously worded Second Amendment protects against the federal government an individual right to bear arms. (The same five justices held last month that gun rights also apply against states.)

All nine justices claimed to be following the Second Amendment’s original meaning. Yet the bitter liberal-conservative split perfectly matched the factions’ apparent policy preferences.

After reading and rereading the 154 pages of opinions to discern who was right about the original meaning, I saw it as a dead heat. So historical research provides no escape from subjectivity. And conservative originalists’ claims of being deferential to democratic governance ring hollow after the two gun decisions and other recent rulings.

Third, even when the original meaning is clear, almost everyone rejects it as intolerable some of the time. For example, nothing in the original Constitution (which ratified slavery) or the 14th Amendment (which required only states to provide "equal protection") was originally understood to bar the federal government from discriminating based on race.

But this did not stop the court from striking down Congress’s segregation of D.C. public schools in Bolling v. Sharpe, a 1954 companion case to Brown v. Board of Education. And almost everybody now agrees that the Constitution bars federal racial discrimination.

Fourth, the accretion of precedents contrary (or arguably contrary) to original meaning pervades almost every area of constitutional law. In case after case, justices must choose whether to stray ever farther from originalism or to overrule precedents.

Imagine yourself as a justice, confronted with highly persuasive legal arguments on both sides of most big cases. How would you break the ties? By flipping coins? Or, perhaps, by persuading yourself that the interpretations that suit your policy preferences are the better ones?

This is not to suggest that judicial review is illegitimate. Americans count on the court to protect cherished rights, and the country needs an independent judiciary to check majoritarian tyranny.

The key is for the justices to prevent judicial review from degenerating into judicial usurpation. And the only way to do that is to have a healthy sense of their own fallibility and to defer far more often to the elected branches in the many cases in which original meaning is elusive.

Elena Kagan professed such a modest approach in her confirmation testimony. Yet so did the eight current justices, and once on the court, all eight have voted repeatedly to expand their own powers and to impose policies that they like in the name of constitutional interpretation.

Why so immodest? Perhaps because the justices know that as long as they stop short of infuriating the public, they can continue to enjoy better approval ratings than Congress and the president even as they usurp those branches’ powers.

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The 24-hour sentence was imposed on Mike Nifong, the disbarred former district attorney of Durham, after a contempt-of-court trial last week for repeatedly lying to hide DNA evidence of innocence. His prosecution of three demonstrably innocent defendants, based on an emotionally disturbed stripper’s ever-changing account, may be the worst prosecutorial misconduct ever exposed while it was happening. Durham police officers and other officials aided Nifong, and the city and county face the threat of a massive lawsuit by the falsely accused former students seeking criminal justice reforms and compensation.

All this shows how the criminal justice process can oppress the innocent — usually poor people lacking the resources to fight back — and illustrates the need for reforms to restrain rogue prosecutors. But the case was also a major cultural event exposing habits of mind among academics and journalists that contradict what should be their lodestar: the pursuit of truth.

Nifong’s lies, his inflaming of racial hatred (to win the black vote in his election campaign) and his targeting of innocent people were hardly representative of criminal prosecutors. But the smearing of the lacrosse players as racist, sexist, thuggish louts by many was all too representative.

Dozens of the activist professors who dominate campus discourse gleefully stereotyped and vilified their own students — and not one member of Duke’s undergraduate faculty publicly dissented for months. Duke President Richard Brodhead repeatedly and misleadingly denigrated the players’ characters. He also acted as though he had no problem with Nifong’s violations of their rights to due process.

The New York Times and other newspapers vied with trash-TV talk shows hosted by the likes of CNN’s Nancy Grace, a biased wacko-feminist, and MSNBC’s Joe Scarborough, a right-wing blowhard, in a race to the journalistic bottom. The defendants — who endured the ordeal with courage and class — and their teammates were smeared nationwide as depraved racists and probable rapists.

To be sure, it was natural to assume at first that Nifong had a case. Why else would he confidently declare the players guilty? But many academics and journalists continued to presume guilt months after massive evidence of innocence poured into the public record. Indeed, some professors persisted in attacks even after the three defendants were declared innocent in April by North Carolina Attorney General Roy Cooper — an almost unheard-of event.

Brushing aside concern with "the ‘truth’ . . . about the incident," as one put it, these faculty ideologues just changed their indictments from rape to drunkenness (hardly a rarity in college); exploiting poor black women (the players had expected white and Hispanic strippers); and being born white, male and prosperous.

This shameful conduct was rooted in a broader trend toward subordinating facts and evidence to faith-based ideological posturing. Worse, the ascendant ideology, especially in academia, is an obsession with the fantasy that oppression of minorities and women by "privileged" white men remains rampant in America. Its crude stereotyping of white men, especially athletes, resembles old-fashioned racism and sexism.

Can this trend be reversed? The power of extremist professors will continue to spread unless mainstream liberal academics, alumni and trustees stop deferring to them and stop letting them pack departments with more and more ideologically eccentric, intellectually mediocre allies.

As for the media, the case shows the need for editors and watchdogs to remind journalists that they are supposed to be in the truth-telling business and that truth emerges from facts and evidence.

The case did feature one hero, who showed how academics as well as journalists should behave: Professor James Coleman of Duke Law School. Long a champion of liberal causes, Coleman broke ranks with his guilt-presuming colleagues after Brodhead named him to lead a committee investigating the team’s culture. Yes, the report Coleman’s committee issued in May 2006 said that some lacrosse players drank unlawfully or excessively and had committed such petty offenses as having noisy parties. But alcohol aside, the report was a stunning vindication. Team members had "performed well academically"; respected the Duke employees with whom they came into contact; behaved well on trips; supported current and former African American players; and had no history of fighting, sexual assault or harassment, or racist slurs.

The media long ignored this portrayal, which did not fit their mythical story line. Coleman later became the first — and for months the only — Duke figure to publicly denounce Nifong’s violations of the players’ rights. The media long ignored that, too.

Stuart Taylor is a National Journal columnist and Newsweek contributor. KC Johnson is a history professor at Brooklyn College and CUNY Graduate Center. They are co-authors of "Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case."

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If Bush wins, the 12th Amendment not only permits but explicitly requires that–under the present unprecedented circumstances–Joe Lieberman be chosen as vice president.

That’s right. It would be the Bush-Lieberman administration, not the Bush-Cheney administration. This would be a wise resolution of the controversy in any event: Bush and Lieberman are well suited to work as a team to overcome the partisan bitterness that could consume either a Bush-Cheney or a Gore-Lieberman administration.

The 12th Amendment, ratified in 1804, begins: "The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves." This means that no Texas elector can vote for both George Bush and Richard Cheney because both are "inhabitants" of Texas. And in an election this close, that means that Bush or Cheney can be elected but not both.

It was this 12th Amendment language that prompted Cheney’s hasty change of voting registration to Wyoming. But the Constitution is not so easily circumvented. The purpose of the quoted language was to prevent one big state from using its votes in the Electoral College to capture both the presidency and the vice presidency. If, for example, Thomas Jefferson and James Madison of Virginia had run as a ticket, the 12th Amendment would have barred Virginia’s electors from voting for both. It is inconceivable that Madison could have avoided this result by moving to North Carolina a few months before the election.

It is also clear that as a matter of Texas law, Cheney’s Wyoming gambit cannot instantly end his legal status as a Texas "resident" (or inhabitant). Residency cannot be altered overnight as a matter of convenience. (Just ask the parent of any college student at a public university who seeks "in-state" tuition, or a taxpayer who’s tried to escape the income tax of a state where he or she has recently been a resident.)

Two objections to this logic help explain why you haven’t heard more about Cheney’s 12th Amendment problem. The first is that it is unlikely that the courts would order Texas’s electors not to vote for both Bush and Cheney (although one court has been asked to do so in a lawsuit). The answer to this objection is that constitutional provisions that are "nonjusticiable"–not enforceable by judges–are binding on electors no less than on members of Congress and the executive branch.

The second objection is that this provision is anachronistic, because few of us today care whether both president and vice president come from the same state. But it would ill-become "strict constructionists" to suggest that constitutional provisions deemed anachronistic should be ignored.

To be sure, it may be unrealistic to expect the 12th Amendment to make a difference in this impasse unless Bush and Cheney were to ask the Texas electors to honor it. But if Bush, Cheney and Gore got behind this idea, it would be unstoppable. Republican reluctance to accept Lieberman as vice president would be offset by the opportunity to move the Senate–with Lieberman resigning and being replaced by Connecticut’s Republican governor–from a 50-50 deadlock to a 51-49 Republican majority.

The Constitution also provides a way for a victorious Gore to make Bush his vice president. Step one would be for Lieberman to resign as vice president-elect in order to stay in the Senate and prevent Republican control; that would be worth quite a bit to a President Gore facing a hostile Republican House. Step two would be for Gore to use the 25th Amendment to nominate a new vice president, subject to confirmation by both House and Senate. Who could be confirmed amid the current partisan bitterness? George W. Bush. Unlikely? Gore and Bush may be at swords’ points now, but if they are the patriots we believe them to be, they could work it out.

Such a mixed party government would not be altogether new. More important, a Bush-Lieberman or Gore-Bush solution would embody a commitment to more teamwork and less partisan warfare.

Philip Bobbitt, a professor of constitutional law at the University of Texas, served in the Carter, Bush and Clinton administrations. Stuart Taylor Jr. is a National Journal columnist and Newsweek contributor.

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