It’s Time for Republicans to Show They Truly Care About Due Process

The Weekly Standard

It’s not just for Brett Kavanaugh. In October, Republican senators were the champions of due process. They argued that Supreme Court nominee Brett Kavanaugh must be presumed innocent in the face of the uncorroborated sex-crime accusations that Democrats had rushed to endorse. Forty-nine Republicans (and one Democrat) then confirmed his nomination to the Supreme Court. “In evaluating any given claim of misconduct, we will be ill served in the long run if we abandon the presumption of innocence and fairness, tempting though it may be,” said Maine’s Susan Collins on the Senate floor in the decisive speech of the confirmation […]

The ACLU’s J’Accuse

The Weekly Standard

The group comes out against equal treatment before the law. More than four years ago, 28 members of the Harvard Law School faculty publicly criticized the sexual-assault adjudication procedures adopted by the university under pressure from the Obama administration. They noted that these were “overwhelmingly stacked against the accused.” The law professors, including some with stellar feminist credentials, said that the university’s goal should “be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.” Similar expressions of concern about the basic […]

Racial Preference on Trial as Harvard Goes to Court

In 2003, the Supreme Court hoped the use of racial preferences would last no more than 25 years. They are becoming permanent. The discrimination lawsuit against Harvard College that goes to trial in federal court on October 15 may well put a momentous choice before the Supreme Court, and the country, within the next few years. Should the Court allow racial preferences in university admissions to continue forever? Or should it ban them as unconstitutional, even though a rigorously enforced ban could dramatically cut enrollments of African Americans and Latinos at selective schools? Almost all publicity about the case has […]

Innocence Presumed

The Weekly Standard

Betsy DeVos undoes a major campus injustice. That campus Title IX sexual-misconduct tribunals are unfair to accused students is all but a truism. Since 2011, when the Obama administration forced a guilt-presuming reinterpretation of the 1972 law, more than 100 colleges and universities have been on the losing side in lawsuits filed by accused students protesting their treatment. The Department of Education is planning to issue new regulations addressing the relationship between Title IX and fair procedures in cases of alleged campus sexual assault. The draft regulations are still under review, but as reported in the New York Times, they […]

Privilege and Precedent: It is far from clear that Mueller can compel Trump to testify before his grand jury.

The Weekly Standard

Special counsel Robert Mueller wants to talk to the president. With the pitched battle of words forever escalating—Trump’s new team of gloves-off lawyers and his vocal supporters pitted against the special counsel’s own proponents in the media—many exude confidence in Mueller’s power to subpoena the president’s testimony, assuming the eventual backing of the Supreme Court. But let’s slow down a bit. Although Mueller has warned Trump’s lawyers that he might subpoena the president if he refuses to testify voluntarily, he might well elect not to. The two sides could compromise on a deal for testimony on limited subjects or only […]

The Yale Rape Trial Isn’t Over Yet

The Weekly Standard

The March 7 acquittal by a New Haven jury of a suspended Yale student on charges of raping a classmate has been much lamented on campus and in the national media. But a review of the evidence shows that the trial was fair, the defense was ethical, and there was much more than a reasonable doubt about the accuser’s claim that she was so drunk as to lack the capacity to consent. The facts of this he-said, she-said case are that Saifullah Khan, a then-22-year-old Yale senior, and his accuser, also a senior, had Halloween dinner together at the dorm’s […]

You’re Fired!

The Weekly Standard

As special counsel Robert Mueller and the FBI circle ever closer to the Oval Office, Washington is convulsed by speculation that the president may take drastic action to cut short the investigation. Donald Trump has escalated his Twitter attacks on the FBI and the Justice Department, and there is a growing effort among Trump supporters to paint the investigation as hopelessly compromised. The December 1 guilty plea of former national security adviser Michael Flynn will have only intensified Trump’s fears that the special counsel is focused on his family. Trump’s lawyers continue to claim that the president has nothing to […]

The Title IX Training Travesty

The Weekly Standard

In November 2014, a female member of Brown University’s debate team had oral sex with a male colleague while they watched a movie. Eleven months later, she filed a complaint with Brown, accusing him of sexual assault. Both parties in the case had credibility issues; he had violated a no-contact order, she had withheld from the university the bulk of their text messages. But the accused student possessed strong exculpatory evidence. He produced the full record of their communications, which included texts from the accuser to him discussing the encounter in a highly positive fashion and referencing a “plan” to […]

Overruled

The Weekly Standard

Education Secretary Betsy DeVos on September 22 formally rescinded the Obama administration’s commands that universities use unfair rules in sexual-misconduct investigations—rules that had the effect of finding more students guilty of sexual assault. And she appears also to be preparing for far more forceful due-process protections down the road. Those follow-on regulations could require schools to presume that accused students are innocent unless proven guilty, to allow rigorous cross-examination of accusers, and perhaps also to grant the accused the unqualified right to appeal adverse decisions, and more. Meanwhile, the modest improvements that DeVos included in the “interim guidance” of September […]

The Persistently Misleading Media

The Weekly Standard

The Trump Education Department’s plan to change the Obama administration’s policy on campus rape accusations—a policy that has helped expel countless students who were innocent of any sex crime—set off a frenzied attack by interest groups. In joining this attack, major media outlets have continued a pattern of misrepresenting statistics to justify presuming guilt. The Washington Post led the way by implying that more than 90 percent of students accused of sexual assault are guilty, and that procedural fairness in campus disciplinary proceedings is therefore unimportant—or even harmful to victims. A July 14 Post editorial proclaimed that “the prevalence of false accusations has been […]