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 process. “It is when passions are most inflamed that fairness is most in jeopardy.” Senate majority leader Mitch McConnell declared, “totally uncorroborated allegations [must not be] enough to destroy an American’s life.”

Praiseworthy words, and yet congressional Republicans have been almost silent about another mockery of due process: the railroading of hundreds of college students on “sexual misconduct” charges considerably flimsier than those leveled against Kavanaugh. What’s more, fearful of being branded retrogressive on gender issues, they are failing to support Education Secretary Betsy DeVos’s valiant effort to right this wrong. In November, she proposed rules that would go a long way toward instilling fundamental fairness in the campus proceedings that follow an accusation of sexual misconduct. But rather than receiving vocal support from congressional Republicans, DeVos has been left to fend for herself in the face of vitriolic and often wildly misleading attacks from Democrats.

In the House, the only serious support for DeVos’s work has come from outgoing education committee chair Virginia Foxx (R-N.C.), who described the effort to create “reliable and fair procedures” as “crucial.” The proposed regulations, Foxx argues, would undo the “serious damage” caused by the Obama administration’s “arbitrary Title IX guidance.”

The only senator to publicly defend DeVos’s new rule initially was Lamar Alexander, chairman of the Health, Education, Labor & Pensions Committee. The Tennessean, himself a former education secretary, issued a press release cautiously praising DeVos for seeking “to balance fairness and support for survivors.”

On December 6, we asked the other Republicans on Alexander’s committee for comment on the DeVos proposals. Louisiana senator Bill Cassidy, who has previously expressed concerns about the fate of accused students on campus, endorsed her efforts: “Victims and the accused deserve to be treated fairly and receive due process, and I support Secretary DeVos’s work to restore and support these fundamental principles on every campus.” None of the other committee members responded, including Susan Collins, who had been so eloquent about the importance of the presumption of innocence when the accused was a powerful jurist rather than a simple college student.

The record at the state level is equally bleak. New Hampshire governor Chris Sununu, perhaps eager to appease the new Democratic majority in the state legislature, demanded that DeVos withdraw the proposed regulations. “We know,” Sununu asserted, “that 1 in 4 women and 1 in 10 men will be sexually assaulted in college.” In reality, around 1 in 40 women will be sexually assaulted while in college, according to the most reliable survey data.

In New Jersey, a bipartisan state senate committee approved a measure to codify the Obama-era Title IX guidance and create a state “Campus Sexual Assault Commission.” Cosponsored by the state senate’s minority leader, Republican Thomas Kean Jr., the commission will include multiple figures representing the perspective of campus accusers—including at least one “individual who is a campus sexual assault survivor”—but no one specializing in defending accused students or representing a civil-liberties organization. This one-sided commission, Kean promised, would “keep generations of students safe from sexual violence.”

The silence of Republican legislators is all the more unsettling given the concerns repeatedly expressed by high-profile conservative judges about the state of affairs on campus. During oral arguments in September in a case against Purdue University, Amy Coney Barrett of the Seventh Circuit Court of Appeals (she was one of the three finalists for the Court seat Kavanaugh now holds) was shocked to learn that a student was suspended from school and dismissed from the NROTC after a hearing at which the accuser neither appeared nor had to submit an official statement. Sparring with Purdue’s lawyer, Barrett noted, “It was a credibility contest in which you not only did not hear directly from [the accuser], you didn’t even read words that she had written.”

That same month, in a ruling involving a case against the University of Michigan, Amul Thapar of the Sixth Circuit Court of Appeals held that public universities must include cross-examination in campus sexual-assault tribunals. “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story,” Thapar wrote, “but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.”

Thapar’s opinion is one of more than 100 federal and state court decisions since 2011 in which universities found themselves on the losing side in lawsuits brought by students accused of sexual assault. In their rulings, judges have cited pervasive pro-accuser bias among academic officials; secret training of adjudicators to believe accusers even in the face of discrediting evidence; bans on meaningful cross-examination; concealment of exculpatory evidence; designation of a single bureaucrat as investigator, prosecutor, judge, and jury; and numerous other due-process outrages.

The rule DeVos is proposing seeks to end such abuses by requiring unbiased adjudicators and training materials; rights for accuser and accused alike to see the case evidence and the relevant training materials for adjudicators; and the right of accused students to designate agents to cross-examine accusers and other witnesses.

Dozens of Democratic legislators have attacked DeVos’s proposal. Without evidence, California senator Dianne Feinstein tweeted that allowing cross-examination and equal access to evidence would “silence” and “drown out the voices of victims.” Her New Jersey colleague Bob Menendez claimed that the fairer procedures envisioned by DeVos would “discourage student survivors from reporting incidents.”

In the House, presumptive speaker Nancy Pelosi released a statement asserting, absurdly, that the proposed rule “denies survivors due process.” California’s Barbara Lee, who narrowly missed becoming the House’s fourth-ranking Democrat, openly embraced a presumption of guilt and complained that the proposed regulations would remove the burden of proof from the accused. Another California representative, Jackie Speier, accused DeVos of being “intent on putting us in a time machine and taking us back to the Stone Age, when it was okay to drag a woman by her hair.” “We aren’t going back,” Speier promised.

At a time when the campus climate across the nation is quick to “believe the victim” and dismisses due process as part of “rape culture,” DeVos and her team are almost alone in the federal government in showing concern for the rights of the accused. She may, however, soon be getting a potent ally: William Barr, President Trump’s nominee to be attorney general. Last year, Barr offered a blurb for our book The Campus Rape Frenzy. “Male students accused of sexual misconduct are found guilty, and their lives destroyed,” he wrote, “by campus panels operating without any semblance of due process and all too frequently on the basis of grossly inadequate information.” Barr’s willingness to speak out against campus injustices contrasts sharply with the timidity of GOP legislators.

DeVos’s proposed regulations are now open for public comment, and victims’ rights organizations are flooding the process with calls to uphold the one-sided procedures of the last seven years. Congressional Republicans can help thwart this effort by publicly endorsing DeVos’s attempt to create a fairer campus system for all. It would show everyone that their demands for fairness to Kavanaugh go beyond partisan politics.

K.C. JOHNSON and Stuart Taylor Jr. are the authors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (2017).

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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 unfairness of the federally dictated Title IX procedures, which most colleges had adopted enthusiastically, would also come from groups of law professors at Penn and Cornell.

Since April 2011, when the Obama administration sent thousands of schools its “Dear Colleague” letter reinterpreting Title IX to mandate guilt-tilting sexual misconduct procedures, colleges and universities have been on the losing side of 117 court decisions in lawsuits filed by accused students; 53 more lawsuits (at the federal level alone) were settled before a court could render any decision. Summarizing judicial concerns about universities’ one-sidedness in a 2016 decision involving a student from Brandeis University, U.S. District Judge F. Dennis Saylor wrote, “It is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”

As all of these developments occurred, the American Civil Liberties Union (ACLU) remained silent. For more than seven years, the ACLU never criticized the evisceration of due process and fundamental fairness in campus Title IX tribunals—although it also never endorsed the Obama-era standards. But in case after case, it ignored egregious unfairness to accused students who had strong claims of innocence. The organization finally broke its silence on November 16, after Education Secretary Betsy DeVos proposed new regulations on campus sexual misconduct designed to make campus procedures fairer to both parties. In an inflammatory Twitter thread, the ACLU described the new regulations as “inappropriately favoring the accused.”

It was a broad attack, and the ACLU did not exempt the fundamental protections that DeVos’s effort is designed to restore—the right of accused students to be presumed innocent; the right of accusers and accused alike to cross-examine witnesses through a lawyer or an advocate; and the right of the accused to examine all the evidence uncovered in the campus investigation and all the materials used to train campus adjudicators. The thread closed with a promise: “We will continue to support survivors.”

Ten hours after the tweets (which were surely posted before the ACLU had fully digested all 149 pages of DeVos’s proposed rule), the organization issued a broader analysis by Emma J. Roth, a fellow at the ACLU’s Women’s Rights Project, and Shayna Medley, a fellow at its LGBT & HIV Project. Though their article claimed that the ACLU “is equally committed to ensuring students can learn in environments free from sexual harassment and violence and to guaranteeing fair process for both respondents and complainants,” its tone and contents confirmed the thrust of the Twitter thread. They closed by characterizing the proposed rule as just another in “a long line of actions taken by the Trump administration to attempt to roll back civil rights for some of the most vulnerable students.”

Roth and Medley alleged three specific problems with the proposed regulations, only one of which directly addressed the procedures afforded to accused students: that the regulations would allow schools to choose between “preponderance of the evidence” (50.01 percent) and “clear and convincing evidence” (around 75 percent) as the standard of proof in adjudicating the innocence or guilt of accused students. (It is worth noting that the ACLU has not criticized the existing use of the clear-and-convincing standard mandated by some schools’ union contracts to adjudicate sexual harassment complaints against professors.) The two further problems they adduced are that the proposed regulations use the Supreme Court’s definition of sexual harassment, rather than the far more expansive language of Obama-era guidance, and reduce the number of university administrators legally obligated to act if they receive a Title IX complaint from an accuser. The official ACLU statement, issued by the organization’s deputy legal director, simply summarized the points raised by Roth and Medley.

It is difficult to discern a connection between the wildly inflammatory claim in the ACLU’s tweet—that the proposed regulations would be “inappropriately favoring the accused”—and these three specific complaints.

In practical terms, it’s unlikely that any of the three provisions would have much effect on students who experience sexual misconduct on campus. Since September 2017, DeVos has allowed every college and university in the country the option of using the clear-and-convincing standard of proof in Title IX cases—and, as far as we have been able to determine, not one has chosen to do so. In the current campus climate, any university president who moved in the direction of protecting possibly innocent accused students would almost certainly be subjected to a wave of campus protests and risk losing his or her job.

While it’s possible that a tighter definition of sexual harassment would exclude some Title IX complaints, the ACLU didn’t cite a single campus complaint against an accused student over the past seven years that would have qualified as sexual harassment under the Obama-era standard but not under the Supreme Court’s definition. Colleges, of course, could retain the Obama-era definition in their own disciplinary codes. And the mandatory reporting issue focuses mostly on bureaucratic minutiae rather than broader questions of principle.

In short, after spending seven years ignoring myriad and severe due-process deprivations on campus, the ACLU resorted to unlikely hypotheticals to criticize the proposed remedy.

The ACLU’s position is odd for an organization that purports to be devoted to civil liberties. Roth and Medley argued that for colleges to use the clear-and-convincing standard would “weight the scales against complainants in civil disciplinary proceedings.” But this view imagines the Title IX process as a contest between accuser and accused, rather than what it is: a process in which representatives of the college effectively investigate and prosecute the accused, with the accuser as the chief witness. As the Foundation for Individual Rights in Education (FIRE)—which has become the nation’s preeminent champion of civil liberties on campus and been tireless on the issue of the 2011 guidance—noted, “Given the marked lack of core due process protections in the vast majority of campus judicial systems, the adjudication of such serious, life-altering accusations requires more than our lowest standard of proof.” The American Association of University Professors has made a similar point. So has the American College of Trial Lawyers.

This year, moreover, federal judges hearing lawsuits against the University of Colorado and the University of Mississippi suggested that the preponderance standard in Title IX sexual-assault proceedings is itself unlawful. U.S. District Judge James Browning of New Mexico went further, holding that “preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to [the accused student’s] expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on [his] transcript.”

Perhaps there are other occasions in the ACLU’s history in which it maintained that multiple federal courts were worrying too much about the rights of the accused. But there can’t be many. The Atlantic’s Conor Friedersdorf observed that ACLU “staffers weighed what most meaningfully excludes someone from equal treatment in education—and they decided new due-process protections are more problematic than expelling someone after a process wherein they were unable to see evidence, or question their accuser, or be judged by a neutral party.”

As to the definition of sexual harassment, schools’ aggressive applications of the Obama administration’s more expansive definition have been denounced by many civil libertarians as infringing on constitutionally protected speech. And for good reason. Federal agreements settling investigations of the University of Montana and the University of New Mexico indicated that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature,’ ” including “verbal” (speech)—even if the allegedly harassing statements of the accused student or faculty member would not be offensive to an “objectively reasonable person of the same gender in the same situation.” It’s hard to fathom a civil liberties organization—especially one that decades ago stood up for the free speech rights even of Nazis—showing such hostility to federal protection of speech.

Roth and Medley provided a final reminder of the ACLU’s newfound indifference to the plight of the accused by asserting that the ACLU is especially concerned about “students of color” and other vulnerable campus populations. Yet there is ample evidence in the reporting of Emily Yoffe, Ben Trachtenberg, Jacob Gersen, and Jeannie Suk Gersen that the Obama-era Title IX guidance has disproportionately harmed accused students of color. At the few universities for which race-based campus statistics exist, such as Findlay and Colgate, men of color are dramatically overrepresented among those punished for sexual assault. “If we have learned from the public reckoning with the racial impact of over-criminalization, mass incarceration, and law enforcement bias,” Suk Gersen wrote in the New Yorker in 2015, “we should heed our legacy of bias against black men in rape accusations.”

As the Washington Post’s Radley Balko observed after the group’s Twitter attack, “The ACLU still does some great work. But damn is it ever disappointing to see this organization, with all its history, use the phrase ‘inappropriately favoring the accused.’ ” Whatever the merits or flaws of the rest of the ACLU’s activities, it has become an adversary of due process and free speech on campus.

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Almost all publicity about the case has focused on the powerful, if disputed, evidence that Harvard discriminates in admissions against Asian Americans—an historically oppressed racial minority—to avoid admitting a greatly disproportionate number from a group whose academic excellence far outpaces all others’.

The plaintiff, a body called Students for Fair Admissions (SFFA), wants to end Harvard’s alleged discrimination against Asian Americans, but its ultimate objective is far broader. It hopes to persuade the Supreme Court to order an end to the pervasive regime of large racial preferences (euphemistically called “affirmative action”) used by almost all selective schools to admit blacks, Latinos, and other minority groups ahead of Asian Americans and whites who are far stronger academically. The SFFA is headed by Edward Blum—the conservative activist who has organized some of the major legal challenges to affirmative action—and enthusiastically supported by dozens of Asian-American organizations (though also opposed by many others). Critics portray the lawsuit as a cynical ploy by whites like Blum to drive a wedge between other minorities and Asian Americans. But the latter would clearly be admitted in greater numbers, as would whites, if the suit wins. The Department of Justice issued a statement of interest in the case in August—and is itself concurrently investigating both Harvard and Yale on the same charge.

A ban, or at least a mandate to phase out preferences on a strict timetable, would be an overdue vindication of the nondiscrimination principle of the Constitution and our civil rights laws. It would also slow society’s drift toward racial preferences in every walk of life, which are a major driver of our ever more divisive identity politics. Such a ruling would also benefit the many good black and Hispanic students who are now being set up to struggle or fail—and be stigmatized as academic weaklings—by being recruited via preferences into schools for which they have not been well-prepared.

Yet court-ordered colorblind admissions could reduce the number of blacks at Harvard by more than half—from 14 percent to about 6 percent, according to the school’s court filings (these estimates are disputed by the plaintiff as unrealistically high). It could reduce Latinos at Harvard by about a third—from 14 percent to 9 percent. Colorblind admissions would bring even larger reductions in the black and Hispanic enrollments at the country’s less elite but still selective schools, where the racial gaps are often much larger than at Harvard. And while all of those students could still get into less selective or nonselective colleges, this would be a wrenching consequence.

Harvard and other top schools would find ways to mitigate the effects of a loss in the Supreme Court on black and Latino enrollments, such as increasing admissions preferences for disadvantaged students of all races and curtailing “legacy” preferences for mostly well-off, and mostly white, children of alumni and big donors. California banned racial preferences in state schools and programs in 1996, thanks to Proposition 209, and studies have shown that while fewer blacks and Latinos have been admitted to the most selective universities—Berkeley and UCLA—there were also good effects. Many of those who did not get into those campuses ended up having much greater academic success and better graduation rates at the less selective state schools. And any loss of diversity at Berkeley and UCLA was offset by diversity gains at these other schools. (Seven other states have since followed suit.)

Still, a large drop in black and Hispanic representation at top institutions—which would be relentlessly dissected by the media—would be a rude shock to many public-spirited Americans, and especially those blacks and Hispanics who have come to see preferential admissions as a permanent entitlement. Such a drop could aggravate the already dangerous bitterness of race relations and politics in this country. It could depress the morale of the many black students who already feel that the deck is stacked against them by white racism. This is the fundamental dilemma presented by the Harvard case and, ultimately, by the shockingly large—but rarely acknowledged—size and persistence of our nation’s racial gaps in academic performance at all levels.

These gaps shrank from the 1960s through the 1980s, but leveled off more than 20 years ago and show no sign of becoming smaller unless preschool and K-12 education change radically. The changes should include starting school earlier in life, immersing kids in learning for longer hours, training parents to help educate kids at home, paying effective teachers much more money, easing out ineffective teachers, and promoting good, well-funded charter and magnet schools and other alternatives to failing inner-city public schools. More fundamentally, studies suggest racial academic gaps are unlikely to disappear unless and until the structure of black families changes. And there is also much evidence that racial admissions preferences make it harder—not easier—to improve the weak academic performance of black and Latino students at all levels.

A Most Revealing Document

In 2012, Harvard’s Office of Institutional Research (OIR) made a table analyzing 10 years of the college’s admissions data. (For internal use only, it became public thanks to the SFFA lawsuit.) The table shows that if admission had been based solely on academic performance and test scores, only about a dozen—1 in 150, or two-thirds of 1 percent—of Harvard’s roughly 1,660 entering students per year would have been African American; about 40 (2.42 percent) would have been Latino; about 630 (38 percent) would have been white; and about 715 (43 percent) would have been Asian American. Other Harvard documents show that the average SAT scores of Asian and white students admitted from 2010 to 2015 were 218 points and 193 points higher, respectively, than those of admitted black students, on a 1600-point scale. The magnitude of the racial gaps in high school grades is roughly similar, especially if adjusted for school quality.

Almost nobody suggests that admissions should be based on academics alone. (Caltech is an exception. It says it uses no racial or legacy preferences in admissions, and its student body is more than 40 percent Asian.) Harvard and other selective colleges take account of extracurricular activities, personal qualities, and athletic talent. The children of alumni (legacies), big donors, faculty, and staff receive preferential treatment. And there are very large racial preferences for blacks, Latinos, and some smaller minority groups.

The OIR table found that after Harvard took account of nonacademic factors, including race, its typical entering class over those 10 years included not a dozen but about 173 African Americans (10.46 percent of the class); not 40 but about 157 Latinos (9.46 percent); not 630 but about 717 whites (43.21 percent); and not 715 but about 300 Asian-Americans (18.66 percent). (The numbers don’t add up to 100 percent because they don’t include foreign, “unknown,” and some other categories.) If Harvard had not used racial preferences but had considered all the other nonacademic factors, the OIR table found, the student body would have been about 2.36 percent black and 4.07 percent Latino.

Since 1978 and the splintered Bakke decision, a deeply divided Supreme Court has upheld admissions programs that take race into account as a balance-tipping “plus” in the interest of “diversity”—but only in that interest. But the Court’s four more conservative justices, who would have banned any consideration of race in university admissions, joined in Bakke with the pivotal Lewis Powell to reject a second justification advanced by the four liberal justices. This was that, apart from diversity, considering race is lawful if the purpose is “not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.” Powell and the four more conservative justices also rejected racial “quotas” (a vague term that went undefined). In his solitary but controlling opinion, Powell wrote that the “interest of diversity” (also vague and undefined) is sufficiently “compelling” to justify limited consideration of race in admissions. He specifically praised Harvard’s policy of giving applicants of “disadvantaged” races a “plus” that might “tip the balance in [their] favor” to reward their “contribution to diversity.” Powell deemed this “contribution” to be a species of “educational pluralism” that would promote a “robust exchange of ideas.” In subsequent decisions, the Court would drop any pretense of seeking a robust exchange of ideas.

Twenty-five years later, in the 2003 Grutter case, five justices endorsed, in the words of Sandra Day O’Connor, “Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.” But they also held that such programs had to be “narrowly tailored” and that “all race-conscious admissions programs [must] have a termination point.” O’Connor added that consideration of race in admissions was a temporary “deviation from the norm of equal treatment of all racial and ethnic groups,” adding “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary.”

Fifteen of those years have now passed with no sign that our most selective schools have any intention of ending—or even reducing—their use of racial preferences. Indeed, Harvard’s longtime admissions director, William Fitzsimmons, said in a deposition for the SFFA case in August that the school has no intention of ending its use of race as a factor in admission, that no evidence exists to support doing so at any point in time, and that he did not “know what form such evidence might take.” Other Harvard officials gave similar statements.

The Supreme Court’s conservatives could see this as verging on defiance of the Grutter precedent, the logic of which weighs more heavily in favor of phasing out preferences with each passing year. Today’s justices are also aware that the persistence of racial academic gaps means that the academic establishment will perpetuate racial admissions preferences indefinitely—unless prevented by law—in order to maintain or increase universities’ percentages of black and Hispanic enrollment. Civil rights groups, Democratic politicians, the news media, and much of corporate America support this agenda.

The Asian Penalty

The general public has long opposed racial admissions preferences by wide margins. Seventy percent of the respondents to a 2016 Gallup poll, including the majority of black respondents, said that college admissions should be based solely on merit. Only 26 percent said racial or ethnic background should also be considered. Those numbers have changed very little since Gallup first asked the questions in 2003. Similarly, in a survey released on September 17 by Boston’s WGBH News, respondents disagreed by 72 to 24 percent with the Supreme Court’s rulings that “colleges can use race as one factor in deciding which applicants to admit.” On the other hand, 83 percent said that “overcoming hardships such as poverty or health problems” should be considered, and 86 percent said it was at least somewhat important that colleges have racial diversity in their student bodies.

A statistical analysis of recent Harvard admissions records by Peter Arcidiacono, an expert witness for SFFA, found that being African American quadrupled (the school’s competing expert said tripled) and being Latino more than doubled an applicant’s chance of getting accepted.

A more general study of racial preferences at highly selective schools found that blacks average an admissions preference worth a staggering 450 (out of 1600) points on the combined math and verbal SAT tests over Asian Americans and a 310-point preference over whites; Latinos average a 270-point preference over Asian Americans; and whites average a 140-point preference over Asian Americans, a phenomenon otherwise known as the “Asian penalty.” While the SAT has long been criticized as culturally biased against blacks, the opposite is true. Blacks do worse in college on average than their SAT scores would predict.

In short, while Bakke and Grutter held that race and ethnicity could be a modest “plus factor” in an applicant’s file, the racial preferences used at Harvard and similar colleges are enormous.

Among the other allegations in the SFFA lawsuit against Harvard (which denies them all) are that it “provides no meaningful criteria to cabin or carefully guide” the weight it gives to race, leaving it to “individual admissions officers’ subjective preferences”; that the school has covertly defied Supreme Court precedents prohibiting quotas and “racial balancing”; and that it has made no serious effort to comply with the Grutter mandate that it engage in “serious, good faith consideration of workable race-neutral alternatives” to racial preferences.

The documents brought to light in the case show that the school admits more than twice as many nondisadvantaged as disadvantaged blacks, with the latter getting no preference over the former. This shows, the SFFA claims, that Harvard’s racial preferences are not primarily designed to help the black students most affected by our legacy of slavery and segregation. There is also ample public evidence that at selective schools generally, large admissions preferences catapult relatively well-off blacks and Latinos over less well-off and academically better qualified Asian Americans and whites. More than 25 percent of black students at selective schools are immigrants or children of immigrants, who on average are more socioeconomically advantaged than other blacks. Indeed, as Yale law professor emeritus Peter H. Schuck noted last year in One Nation Undecided, “most of the potential beneficiaries of [racial and ethnic preferences] are recent immigrants and their descendants,” who are -“competing with the descendants of black slaves whose families have been (and suffered) in America for centuries.”

The Costs of Balancing

The Supreme Court has so far upheld limited, temporary use of racial preferences on the ground that students learn valuable lessons from being exposed to diverse perspectives. The majority in the Grutter decision stressed the need for racial diversity in upholding the University of Michigan Law School’s racial preference plan. The companion Gratz decision struck down another University of Michigan racial preference plan, for undergraduate admissions, because it all too transparently used a quota-like point system to gauge exactly how much admissions officers should discriminate based on race: On a 150-point “selection index,” add 10 points for a mediocre 1010 SAT score; add 2 more for a perfect 1600; add 20 points for the difference between a 4.0 and a 3.0 high school GPA; add 20 points for being black, Hispanic, or Native American (or subtract 20 points for being white); and so forth.

The Court’s more recent decisions—in the Fisher v. University of Texas cases of 2013 and 2016 and the Schuette case in 2014, all three with majority opinions written by the just-retired Anthony Kennedy—have meandered inconsistently while continuing to uphold “narrowly tailored” preferences to advance “the benefits of diversity.” In the 2013 Fisher decision (Fisher I for simplicity of reference), Kennedy’s 7-1 majority opinion sent the case back to the appeals court with instructions to use a demanding standard seen by Court watchers as likely to lead to a major setback for racial preferences in the future. Then, in 2014, Schuette upheld 6-2 a Michigan constitutional amendment banning racial preferences in admissions at the state’s public universities.

The Fisher II decision was a surprise and a major, if still far from conclusive, victory for racial preferences. The same Kennedy, for the first time in his 25 years on the bench, upheld a racial-preference plan. He said courts must give universities “considerable deference,” if not a blank check, in designing admissions programs.

But Kennedy did not quite unsay his holdings for the Court three years earlier in Fisher I. He quoted earlier decisions: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people.” And “any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.” And “an applicant’s race or ethnicity [must not be] the defining feature of his or her application.” And “outright racial balancing . . . is patently unconstitutional.” And “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” Nor did he quite unsay O’Connor’s assertion in Grutter that “narrow tailoring . . . requires that a race-conscious admissions program not unduly harm members of any racial group” or her expectation that racial preferences “will no longer be necessary” after 25 more years—meaning after 2028.

Many scholars see racial preferences for blacks mainly as remedies for the continuing effects of slavery and past discrimination. No Supreme Court majority has ever approved this justification. The Court has, instead, used the diversity rationale to justify preferences not only for blacks, including recent immigrants, but also for Latinos and every other ethnic group—almost all of them immigrants and their descendants—whose members (on average) have trouble competing academically with Asians and whites.

Yet it is questionable whether students of any race benefit from the use of preferences to engineer diversity. This feeds stereotypes of racial inferiority; spurs self-segregation in classrooms, cafeterias, and dorms; and fosters hostility to intellectual diversity on racial and other issues as “microaggressions.”

In One Nation Undecided, Peter Schuck argued cogently that the benefits of preferentially engineered diversity on campuses “are insubstantial”: “[T]he programs’ designation of beneficiary groups is arbitrary and incoherent, even silly,” as are “affirmative action’s rigid pigeonholes.” Preferences “ratify the very stereotypes that the programs are intended to combat,” especially that of “academic inferiority,” and black students grow more and more committed to segregation. The very large white-black gap in SAT scores can create an academic “caste system” in which the preferred students take the easiest courses. He noted, moreover, that on campus “partisan and religious affiliation account for the largest viewpoint cleavages, certainly more than race does.”

The social costs of the racial-preference regime, on the other hand, are very high. As Roger Clegg of the Center for Equal Opportunity wrote in 2017:

It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive.

Richard Sander and I detailed one of Clegg’s 14 points in our 2012 book, Mismatch. Once preferentially admitted to highly selective colleges, a great many able, hardworking black students find themselves struggling to compete with some of the top Asian and white students in the country. Many rank near the bottoms of their classes, at great cost to their career aspirations and intellectual self-confidence, and actually learn less than they would at colleges where they would be as well-prepared as their classmates.

The mismatch problem is most severe at the selective schools that are less competitive than Harvard. This is because of what education specialists call the “cascade effect.” Harvard and the other super-elite schools absorb the best-qualified blacks and Latinos, some of whom are academic stars, while using relatively modest preferences to admit somewhat less strong students who would probably do better at less selective colleges. Those colleges, in turn, use larger racial preferences to bring in weaker black students, who tend to be even less competitive with their Asian-American and white classmates than blacks at the super-elites. And so on down the selectivity curve.

The Supreme Court clearly stated in Grutter that “a race-conscious admissions program [must] not unduly harm members of any racial group,” and the evidence mounts that racial preferences unduly harm members of every racial group.

A Pernicious Racial Stereotype

Under Harvard’s current admissions regime, according to an analysis of the data by SFFA expert witness Peter Arcidiacano, a GPA-test score combination that would give an Asian-American applicant only a 25 percent chance of admission would give an otherwise identical African-American a 95 percent chance, a Latino a 77 percent chance, and a white a 36 -percent chance. Asian Americans, though, are a far larger percentage of Harvard’s admitted students (22.7 percent this year, for example) than of the college-age U.S. population (about 6 percent). This still does not preclude a finding that Harvard discriminates against Asian Americans.

They are so much stronger academically than all other racial groups that the SFFA estimates if “Harvard admitted students based only on their academic index, Asian Americans would comprise over 50 percent of the admitted class.” (The school has increased Asian-American admissions substantially since the lawsuit was filed in 2014, which the plaintiff dismisses as a litigation strategy.) Such claims are always arguable, but Harvard has been forced by its own data to concede that despite Asian Americans’ primacy in academics and near-parity with whites on extracurricular activities, a smaller percentage of Asian-American applicants is admitted than of whites, blacks, or Latinos. Part of the reason is that Asian Americans score lower on “personal” ratings that are both highly subjective and—SFFA and the Department of Justice claim—racially biased.

Harvard says a key reason for its rejection of so many academically outstanding Asian Americans is that few qualify for the large preferences that are given to recruited athletes and alumni children. But the college has conceded that another reason is the relatively low scores its admissions officers assign, year after year after year, to Asian-American applicants for “personal” traits including “human qualities,” being an “attractive person to be with,” having a “positive personality,” and general “likability . . . helpfulness, courage, kindness.” The personal ratings are made by admissions officers who meet face to face with only a handful of applicants annually. They base the scores on a review of the essays, letters of recommendation, and the like in applicants’ files.

SFFA and the Justice Department suggest that these personal ratings reflect either pernicious racial stereotyping or deliberate racial discrimination. Harvard’s court papers deny both and vaguely suggest that the lower average Asian-American personal scores are based on statistical evidence that Asian-American applicants are weaker than whites in “factors that inform the personal rating.” But when asked in his deposition whether “Asian Americans have fewer attractive personal qualifies than white students,” Fitzsimmons, the Harvard admissions director, said: “That wouldn’t be my impression.”

This statement is hard to square with Harvard’s court papers and the report of David Card, the school’s own expert witness. The SFFA lawsuit and the Justice Department’s statement of interest both point to the substantial evidence that Harvard admissions staff—which acknowledges overtly considering applicants’ race at various stages of the admissions process—does so in scoring personal traits as well. The college denies this, but the evidence makes the denial ring hollow. SFFA and Justice stress three secret OIR reports done for Harvard’s leadership in 2012 and 2013 in the wake of the first publicized, heavily documented charges that Harvard discriminates against Asian Americans. These reports, made public this summer through the lawsuit, reach no definitive conclusions on questions including “Is there bias against Asian Americans in college admissions?” But they indicate that Asian-American admissions to Harvard during the 10-year period studied would have more than doubled, to 43.04 percent of all admitted students, if only academics were considered; found that Asian-American ethnicity was negatively correlated with both the personal rating and admission; and suggested that more analysis was necessary to “further address the issue of bias.”

Harvard’s leaders ignored these disturbing reports. They could have sought further analysis of whether the personal rating was racially biased against Asian Americans and endeavored to ensure that it would not be biased in the future. Instead, they “left in place a personal rating that harms Asian American applicants’ chances for admission, weighs heavily in Harvard’s admissions process, and may be infused with a use of race that Harvard has made no effort to justify,” as the Justice Department asserted. All this, DoJ added, “despite [Harvard’s] legal obligation to ensure that its admissions process does not discriminate on the basis of race.”

Harvard dismisses the OIR reports as “preliminary and incomplete”—without bothering to explain why it left them preliminary and incomplete. Even the Harvard Crimson’s editorial board, which is explicitly for racial preferences, noted on September 10, “In failing to further investigate whether it discriminates against Asian Americans in its application process, Harvard ditched educational values and its own motto—‘veritas.’ ”

The school’s defense stresses that there is little or no direct evidence of Harvard officials’ intentionally scheming to hold down Asian-American admissions. But the statistical evidence is powerful. So is the fact that Harvard did nothing to explore or remedy the troubling facts in the 2012 and 2013 OIR reports.

The Conservative Court Weighs In

If the Harvard case does reach the Supreme Court, the stage will be set for a very big decision. The Court could, of course, rule for Harvard across the board, which would entrench racial admissions preferences permanently in higher education in most of the country. That outcome seems improbable if the Court still has five conservative-leaning justices when a decision comes down—as the Court has now for the first time since the 1930s with the confirmation of Brett Kavanaugh. On the other hand, in this era of party-line voting, a Harvard win would be highly probable if the number of conservative justices went down to four.

Another possibility is a relatively narrow ruling that Harvard has unconstitutionally discriminated against Asian-American applicants. The Court could in effect require Harvard to change its admissions policies, especially the “personal” rating, in a way designed to admit more Asian Americans and fewer whites, while assuming the continued validity of Harvard’s very large preferences for blacks, Hispanics, and other “underrepresented” minorities. That, too, seems unlikely as long as there are five conservative justices.

Chief Justice of the United States John Roberts wrote in 2007: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justice Clarence Thomas in his dissent in Fisher II said he would hold that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” Justice Samuel Alito has found unconstitutional every racial preference plan to come before him, and in his dissent in Fisher II—in passages that could easily be turned against Harvard today—he accused the University of Texas of both discriminating against Asian-American applicants and “turn[ing] affirmative action on its head” by channeling racial preferences to the children of affluent black and Hispanic professionals. Alito has also been highly skeptical of arguments that racial preferences are needed to bring “the educational benefits of diversity.” The fourth conservative, Neil Gorsuch, has no track record on the issue, but few conservatives support racial preferences. And Anthony Kennedy’s replacement, Brett Kavanaugh, said in a newspaper interview 19 years ago that it was “inevitable” that the Court “within the next 10 or 20 years” would rule “that we are all one race in the eyes of the government.”

If the Court wants to nibble around the edges of the racial-preference regime without striking a major blow, it could rule against Harvard on just one or two allegations, such as the claim that “the record contains substantial evidence that Harvard is engaging in unlawful racial balancing in formulating each year’s admitted class.” Or the claim that Harvard has “never engaged” in the “serious, good-faith consideration of workable race-neutral alternatives” required by the Grutter precedent.

But such a ruling could be easily circumvented and would have very limited impact on universities’ ability to perpetuate racial preferences. At the very least, the Court should hold that “narrow tailoring” requires universities to make public the data that show the degree of their use of racial preferences and the average academic performance in college of the preferred groups. This would enable preferred students from those groups to assess how steep a hill they would have to climb to compete with far better-prepared classmates. Transparency would also be useful to policymakers and citizens. Schools should be pressured to disclose the size of their legacy and other preferences as well.

A conservative majority might be tempted to declare an immediate, categorical ban on all racial admissions preferences. The danger is that, apart from the vast eruption of protest that would ensue, schools would be unprepared to mitigate the effects of the change. Better might be for the justices to give Harvard and other universities a few years to work out how best to come into compliance and implement nondiscriminatory ways to promote diversity.

The Court could, for example, order Harvard—and, by extension, other colleges and graduate schools—to phase out all use of racial admissions preferences by 2028—
50 years after Bakke. That timetable would be in line with the views expressed or implied by all nine justices in the 2003 Grutter decision. And if, as seems likely, the Court does not issue a final decision in the Harvard case until about 2022 or 2023 (if at all), that would give Harvard time to phase out consideration of race and put pressure on other schools to prepare to do the same.

In this regard, and in light of the valid complaint by champions of racial preferences that legacy preferences mainly benefit wealthy whites, a dissenting point made by Clarence Thomas in Grutter might prove prophetic: “Were this court to have the courage to forbid the use of racial discrimination in admissions, legacy preferences (and similar practices) might quickly become less popular.” Why? Because such a ban would increase the pressure to reduce white admissions further than has already been done (Harvard’s student body is less than half white) to make room for more non-whites.

Ending racial preferences would have costs as well as benefits. But one undoubted benefit would be removing the incentive for rampant lying by virtually everyone involved in the racial-preference regime. In late September, Yale president Peter Salovey wrote a letter to the university at large insisting that “Yale does not discriminate in admissions against Asian Americans or any other racial or ethnic group.” Harvard president Lawrence S. Bacow followed suit on October 10 in a letter to the college’s alumni: “Let me be unequivocal: The College’s admissions process does not discriminate against anybody.” The evidence suggests these are bald-faced lies. Putting aside for the moment the powerful evidence of discrimination against Asian Americans, don’t white kids count? Do not those who are rejected based on race to make room for much less qualified applicants experience discrimination? Or has the word discrimination been redefined as something whites can never experience? One might think so from the false denials of any discrimination at all by the many universities that routinely discriminate against white and Asian-American applicants and call it “affirmative action.”

Then there is the deception of the thousands of black and Hispanic students (and their parents) who are told that they are well-qualified to compete academically against classmates who have far stronger academic records. This despite the universities’ knowledge that most are destined to be near the bottoms of their classes and could achieve much more elsewhere. The lies will continue as long as racial preferences do.

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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 would in many ways produce a fairer approach to accusations of sexual misconduct on campus. If implemented, they would address many of the concerns that federal and state judges across the country have raised about campus tribunals. Based on the published material and information from a source familiar with the departmental development of the new policy, three salutary aspects of the proposed regulations particularly stand out.

First, they would complete Education Secretary Betsy DeVos’s work to make transparent the training regimes for campus sexual-assault investigators and adjudicators that colleges and universities implemented after 2011. The few examples of training materials that have been made public (almost always through litigation) seem designed to ensure disciplinary panelists presume an accused student to be guilty. And the secrecy of these materials frustrates accused students’ ability to defend themselves. We wrote about the issue of Title IX training last November; since our article appeared, biased training played a major role in another university legal setback, after the University of Mississippi employed training materials suggesting that an accuser’s lying be interpreted as a sign that the accused is guilty.

Courts have responded skeptically to the secrecy preferred by schools for their training guidelines. In a decision from earlier this year, U.S. District Court Judge John J. McConnell Jr. of Providence , an Obama nominee, rejected Johnson & Wales’s motion to dismiss an accused student’s lawsuit against the university by citing “the fact that [the student] asked for training material during the appeals process and it wasn’t obtained or given to him.”

DeVos’s interim guidance in September 2017 cautioned schools not to use training materials “that apply sex stereotypes.” The draft regulations confirm this point and—in a major change—require schools to divulge their training materials, upon request, to an accused student or any other party to a Title IX complaint. Such transparency would provide a powerful incentive against unfair procedures.

Second, the proposed regulations clarify that under Title IX, schools must treat all parties fairly. Just as a university’s biased treatment of an accusing student could constitute gender discrimination, so too could biased treatment of the accused student. This would be a welcome change from the Obama-era approach, which was geared almost exclusively toward helping accusers. One of the clearest explanations of why this change would matter came from Judge T. S. Ellis III of Virginia in a ruling against Marymount University. He noted that in evaluating an equity law, biased adjudication procedures “may well run afoul of Title IX” by “depriving students accused of sexual assault of the investigative and adjudicative tools necessary to clear their names.” The process must determine which (if either) of the students is the victim, rather than presuming from the start that the accusing student is.

Finally, the draft regulations require schools that hold hearings to provide for at least some form of cross-examination. An accused student, at a minimum, must be allowed to submit questions for the accuser through a panel. This would be a major change from the Obama-era guidance, which “strongly” discouraged any cross-examination by accused students. It’s unclear, however, whether the draft regulations would—as they should—require panels to ask all relevant questions requested by the parties. This flaw should be fixed before the draft regulations become final. Lawsuits against several schools, including Cornell, have exposed instances of panels unfairly limiting witness questioning.

The draft regulations’ bigger flaw is their failure to require schools to give accused students the right to have a hearing. As drafted, the regulations would still allow schools to use a practice, encouraged by the Obama administration, called a single-investigator model, where one person, hired by the Title IX coordinator, acts as investigator, judge, and jury—interviewing the parties and witnesses and writing a report that pronounces guilt or innocence. The Sixth Circuit, in a lawsuit filed by a University of Cincinnati student, held that “cross-examination takes aim at credibility like no other procedural device.” As a result, “whatever the outcome, ‘the greatest legal engine ever invented for the discovery of truth’ will do what it is meant to”—help the adjudicator to determine credibility and render a decision.

Recent years have shown that in cases involving allegations against students, colleges in most circumstances—whether due to fear of bad publicity, criticism from campus or faculty activists, or well-meaning assumptions that all accusers must be believed in order to rectify the injustices of the past—will adjudicate Title IX complaints through one-sided procedures. If the new regulations give schools the opportunity to continue to bypass cross-examination and other procedural protections by simply abolishing hearings, they will abolish them and an unfair system will be entrenched.

The draft regulations are, nonetheless, an important step in the right direction. After their publication, expected this month, will come a period of around 60 days for public comment, to which the agency is required by law to respond. Whether the resulting public discussion will be at all productive remains an open question. The draft proposals have already received hyperbolic criticism from accusers’ rights groups and prominent Democratic legislators. House minority leader Nancy Pelosi claimed they would create “extraordinary new barriers to justice for survivors.” To New York senator Kirsten Gillibrand, the new regulations amount to siding with “predators.” There can be little doubt that if the regulations are adopted in their current form, Pelosi, Gillibrand, and their allies will pressure colleges to eliminate hearings in Title IX cases as a way of avoiding even the minimal due-process protections that come from indirect questioning of the accuser.

K.C. Johnson and Stuart Taylor Jr. are the authors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (2017).

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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 in written interrogatories. Or Mueller might see the risks, delay, and other costs of starting a subpoena battle as outweighing the benefits—especially if the evidence he has gathered does not clearly implicate Trump in any serious crime. Mueller’s risk in starting a subpoena fight is that he might win less in the Supreme Court than he could have gotten in negotiations, or even lose entirely.

This last possibility is something that Trump’s critics greatly underestimate. The popular analysis is that the Supreme Court’s decisions in U.S. v. Nixon (1974) and Clinton v. Jones (1997) require the president to obey a subpoena to testify before Mueller’s grand jury. Harvard’s Laurence Tribe exemplifies those who hold such presumptions. “The Supreme Court held in the Nixon Tapes Case that executive privilege cannot overcome a grand jury subpoena,” he told Business Insider in March. “So Trump would have to answer every question or be held in contempt—unless he takes the Fifth Amendment.”

We are far less confident in this reading of Nixon and Clinton and that the Supreme Court would award Mueller an unqualified win. If Mueller subpoenas Trump to testify, and Trump fights, then the Court may well decide to limit the questions that the president must answer, if not quash the subpoena altogether. It would have leeway to deal such a setback to the special counsel within the parameters set in the Nixon and Clinton decisions. And whatever the justices may think of this particular president, they will show more care for the needs of the presidency than have the analysts who favor a total victory for Mueller in any battle with Trump.

Let’s begin with U.S. v. Nixon, in which the Supreme Court rejected President Nixon’s assertion of executive privilege in the face of special prosecutor Leon Jaworski’s subpoena for tapes, documents, and other materials relevant to the criminal trial of the Watergate burglars. The Court unanimously ordered Nixon to turn over to Jaworski the secretly recorded Oval Office tapes that he had subpoenaed. While the Court recognized that executive privilege provides some protection for a president’s confidential communications, it also ruled that this protection must give way to the prosecutor’s need for evidence “demonstrably relevant” to the pending criminal trial of several indicted Nixon co-conspirators.

Analysts like Tribe construe this as a blanket rule enabling the special counsel to subpoena not just Nixon’s tapes, but also the current president’s testimony. “US v. Nixon (1974) held the president must comply with a grand jury subpoena for his Oval Office tapes,” Tribe tweeted recently. “There is no basis for treating a grand jury subpoena for the president’s live testimony any differently.” This ignores the key limits and nuances of the justices’ analysis in the 1974 case. The Court did not conclude that the criminal process always outweighs executive privilege; rather, it concluded only that “the legitimate needs of the judicial process may outweigh Presidential privilege” (emphasis added).

Nixon’s mistake was in asserting too categorical a privilege—too broad in scope and too far removed from the specific case at hand. The Court rejected his assertion of “an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of non-military and nondiplomatic discussion.” And it then struck a careful balance: Absent a showing of military or diplomatic need for executive confidentiality, a subpoena for documents for which there was a “demonstrated, specific need . . . in a pending criminal trial” must be obeyed.

It is not hard to see defenses that Trump’s lawyers could mount. They could attempt to distinguish the two investigations by stressing that the case against Trump actually involves diplomatic sensitivities. It is, after all, a Russia investigation. And they could argue that U.S. v. Nixon only requires them to disclose documents for which the special counsel can provide a “demonstrated, specific need” in a “pending criminal trial.” Requesting information for matters not directly tied to an already-filed indictment could fall short.

And whereas Tribe and others discount the difference between a trial subpoena for tapes and a grand jury subpoena for testimony, the distinction seems important to the Court’s own analysis in U.S. v. Nixon for at least two reasons. First, in 1974, the Court stressed that the president’s tapes were to be screened first by the trial judge in camera—that is, secretly—so as to minimize the risk of improper disclosure. Could today’s justices feel confident that presidential testimony would not be leaked by someone, no matter Mueller’s directives or promises? Second, the Court stressed that merely divulging tapes would not expose Nixon to a risk of “being harassed by vexatious and unnecessary subpoenas” by Jaworski or others. Again, could today’s Court feel so confident that Trump would not face a flurry of subpoenas? The ex-New York attorney general’s myriad legal actions against Trump—more than 100, as of last December—suggest otherwise, especially concerning at a moment when the president’s diplomatic and national-security burdens are every bit as sensitive as Nixon’s foreign-policy responsibilities in 1974.

And any president’s preparation for testimony before a grand jury on the broad range of topics allegedly proposed by Mueller’s team would be far more burdensome than simply requiring Nixon to hand over some tapes. The proc­ess of preparing for and giving sworn testimony under questioning by a special counsel who has already indicted Michael Flynn, Paul Manafort, and George Papadopoulos would be time-consuming and arduous.

If Mueller does subpoena the president’s testimony, we should expect a more nuanced outcome than the unqualified victory envisaged by Trump’s most confident critics. Perhaps Mueller would succeed in compelling the president to testify, but only if his questions are tailored narrowly, clearly justified in terms of his investigation’s specific needs, and constructed to minimize their impact on U.S. diplomatic or military sensitivities. It is worth remembering that, as former U.S. attorney Harry Litman observed recently on Lawfare, “no sitting president has ever been forced to provide testimony as a target of a criminal investigation.” Bill Clinton received a subpoena from independent counsel Kenneth Starr, but Starr eventually withdrew it after the two sides struck a voluntary deal for limited testimony.

* * *

Which brings us to Clinton v. Jones, the Supreme Court’s 1997 decision rejecting a presidential claim of immunity from civil suits while in office. Like Nixon, Clinton asserted a categorical privilege: “temporary immunity from civil damages litigation arising out of events that occurred before he took office,” in “all but the most exceptional cases.” Again, the Court rejected the absolutist approach. And again, it took care to define its ruling very specifically rather than giving prosecutors a blank check to subpoena presidents. Citing previous presidents’ cooperation with civil lawsuits, the Court reaffirmed that executive privilege cannot “bar every exercise of jurisdiction over the President” (emphasis added), but stressed that the courts must be cognizant of—and even give “utmost deference” to—the executive’s own responsibilities.

The justices struck a careful balance in 1997: “The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery.” It predicted that its decision, “if properly managed by the District Court,” would not “occupy any substantial amount of [President Clinton’s] time.”

In hindsight, the Court’s confidence can be justly mocked. But regardless of whether today’s Court would emulate the Clinton-era Court’s naïveté, we expect that the justices would at least announce a similar rule: If the president shows that the special counsel’s requests, and the threat of other actions against the president, “could conceivably hamper the President in conducting the duties of his office,” then the lower courts should “manage those actions in such fashion (including deferral of trial) that interference with the President’s duties would not occur.”

Again, the Court’s cautious approach in Clinton v. Jones seems to point towards its strictly managing Mueller’s demands for answers, as well as managing other legal proceedings brought against Trump. Justice Stephen Breyer was particularly sensible of these risks in 1997, which he stressed in an emphatic concurring opinion, and one trusts that he would reason from those concerns if the issue returned to the Court today.

Thus, when critics assert, as Loyola law professor Jessica Levinson recently did to Vox, that “I consider this case all but settled by Clinton v. Jones,” it is less careful analysis than wish fulfillment.

The facts of the current situation, moreover, might well reinforce the justices’ appreciation for the need to carefully calibrate rules governing the president’s susceptibility to legal process.

First, they will be aware that the risk of being indicted by a zealous prosecutor for perjury, even for what might in fact have been an unintentional misstatement of fact, is so great that criminal defense lawyers now routinely advise clients to invoke the Fifth Amendment. The president’s habit of telling bald-faced lies on an almost daily basis would make grand jury testimony especially perilous before a special counsel who has already indicted multiple Trump subordinates. If the Court required President Trump to testify, it would be setting the stage for an unprecedented and politically explosive invocation of his Fifth Amendment right not to testify.

Second, the justices may recognize that Trump’s recent statements and actions suggest a willingness to use his pardon power broadly, to preemptively immunize people within Mueller’s crosshairs—perhaps including his own self. Again, the justices might well act to avoid such a cataclysm.

Neither of us relish taking such considerations into account. The fact that Trump is a persistent liar and that there is genuine risk that he would wield the pardon power as a weapon of self-protection are sad reflections on the character of this president. The Court’s decisions in the Nixon and Clinton cases were emphatically contextual, and so likely would be any Trump-related decision. Such considerations might well incline at least some on the Court to see a decision to order Trump to answer Mueller’s questions as more dangerous to the president’s ability to do his job than anyone foresaw at the time of the Nixon and Clinton decisions.

Again, a Supreme Court win for Trump does not seem to us likely, but it is far from impossible. And a split decision, with two or more justices siding with the president, might embolden Trump. The president might simply defy the order and direct U.S. marshals not to enforce it, setting up a risky constitutional standoff between the executive and judicial branches.

The president may also be immune to an actual indictment while in office, as the Justice Department’s Office of Legal Counsel concluded during both the Nixon and Clinton years. (Other experts strongly disagree.) To the extent that Mueller’s questions are aimed at the president’s own conduct, the Court might conclude that presidential immunity to indictment renders such questions superfluous and thus an unjustified burden on the president. It would further, probably, be deemed improper for a criminal investigator to gather evidence solely for possible use in a House impeachment proceeding.

* * *

For all these reasons, we doubt that the justices would without qualification order Trump to answer every question Mueller wishes to ask. The Court might well put a time limit on any questioning, which Trump could use to run out the clock before the prosecutors get to many of the questions that they want to ask. The president’s latest defense lawyer, Rudy Giuliani, suggested such a limit in his May 2 interview on Fox News: “Some people have talked about a possible 12-hour interview. If it happens, that’s not going to happen—I’ll tell you that. It’d be, max, two to three hours around a narrow set of questions.”

And the justices might limit the subject matter that Mueller could ask about. The president’s lawyers would surely argue that many or even most of Mueller’s proposed questions, especially those inquiring into Trump’s firing of former FBI director James Comey, should be ruled out if Mueller cannot give the Court a “demonstrated, specific need” for answers to those questions—the standard in U.S. v. Nixon.

Trump would no doubt tie his objections to questions about the firing of Comey—and threats to fire Mueller and deputy attorney general Rod Rosenstein—to his power under Article II of the Constitution to fire subordinates. It is so broad, some serious legal experts argue, that even an allegedly corrupt motive, such as firing a subordinate to squelch revelations of misconduct, cannot be obstruction of justice or any other crime.

This is a hotly contested topic. Scholars such as Josh Blackman of the South Texas College of Law in Houston have detailed the argument that the exercise of a core presidential power cannot be obstruction of justice. While others emphatically disagree, some lawyers who are no fans of Trump also caution that it might be unwise for the Court “to demand that any president account to a prosecutor for his intent in making a personnel change,” as William Taylor, a respected criminal-defense lawyer, told us. Taylor added that a “president might have good reason to fire a law enforcement official who persists in an investigation the president thinks is improper or politically motivated.” Indeed, even Comey himself noted to Trump during an early 2017 meeting “that he could fire me any time he wished.” Giuliani has raised this point in public.

In addition, there remains the controversy surrounding the propriety of the investigation itself. Deputy attorney general Rod Rosenstein’s extremely broad original grant of power to Mueller—to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”—has been assailed as improperly reaching beyond suspected crimes of the Trump campaign and beyond the terms of the Justice Department regulation that Rosenstein invoked. U.S. District Judge T. S. Ellis told Mueller aide Michael Dreeben during a May 4 hearing on the charges against former Trump campaign chairman Paul Manafort: “If I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals [or] anything the special prosecutor is authorized to investigate.” “You don’t really care about Mr. Manafort’s bank fraud,” Ellis added. “You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever.”

The composition of the special counsel’s team and the exposure of private anti-Trump comments by two former members have additionally spurred critics to accuse it of partisan bias. Might some justices share that suspicion? And is this the context in which the Court would take the unprecedented step of granting a special counsel unqualified power to subpoena the president’s testimony?

As the Supreme Court showed in the Nixon and Clinton cases, it knows well how to protect the president’s privileges and responsibilities without putting him above the law.

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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 dining hall on October 31, 2015, and crossed paths later that night—first at a drinking party and then at a Yale Symphony Orchestra concert—ultimately ending up in her room at 1:11 a.m. and having sexual intercourse.

The trial centered on the credibility of the accuser’s testimony—which was halting, tearful, and contrary to proven facts on some points—and of her claim that she was so drunk that she could barely stand or walk, flitted in and out of consciousness, and awakened in her bed for just long enough to feel Khan on top of her and to try to push him off.

Khan, an Afghan who was recruited to an American prep school (Hotchkiss) and then to Yale because of his academic gifts, testified that the accuser did not seem at all intoxicated to him during the six hours they were in her room, flirted with him at the concert and on the walk back to the dorm, invited him into her room, and initiated both oral sex and, more than two hours later, full intercourse.

Numerous Yale students, journalists, and champions of rape victims’ rights have trashed the trial and especially the defense lawyer’s cross-examination of the accuser as “every survivor’s worst victim-blaming nightmare,” in the words of Jess Davidson, interim director of the advocacy group End Rape on Campus.

The article reporting the verdict in the New York Times, which exhibited bias throughout its coverage of the trial, disapproved of Khan’s lawyers working “relentlessly to discredit the account of the woman. . . . They asked repeatedly how much she had to drink. . . . They showed off her Halloween costume, a black cat outfit, and asked her why she had not chosen a more modest one, such as ‘Cinderella in a long flowing gown.’ ” Time called its piece “A Yale Student Accused Her Classmate of Rape. His Lawyers Asked What She Was Wearing and How Much She Drank.” An online magazine for young women, Refinery29, ran its account of the trial under the headline “Jurors Bought Stale Victim Stereotypes—Just Like the Defense Hoped.”

Yet defense lawyers are required to do their best to discredit accusers who are trying to put their clients behind bars—Khan faced a maximum prison sentence of 46 years and deportation back to Afghanistan, where he believes he would have been executed, stoned, or lashed under the country’s laws. And wasn’t it part of the defense’s duty to probe the accuser’s claim that she had had so much to drink that she was losing consciousness several hours later? The lead defense lawyer, Norman Pattis, called the reaction “a form of mass hysteria.”

His question about the costume that the accuser chose for her Halloween get-together with Khan spurred particular outrage among the accuser’s advocates. “A misogynistic tactic that men habitually use to silence women . . . by blaming them for their own assaults,” raged Amelia Nierenberg, a Yale Daily News columnist. Out of a variety of costumes from a Yale storage closet, the woman had opted for the sexy cat, pairing a sequined black miniskirt with matching tube top and tail. In pointing this out, Pattis stressed that his purpose was not slut-shaming but spurring skepticism about the accuser’s testimony that she was uninterested in Khan sexually and was afraid that he was stalking her and trying to get into her room.

In any event, the jurors appear to have paid little attention to the costume. They were far more interested in the grainy security videos that the prosecution made a focus of its case, claiming that they showed the accuser in such an inebriated state that she was stumbling, with her eyes closed and her left foot dragging behind her (as she testified), and needed Khan to hold her up while walking from the concert to her dorm. She emphasized that she was a dancer and did not normally walk that way.

The jurors had the videos replayed numerous times, and those who have spoken publicly saw nothing of what the prosecution suggested. “We looked at and we looked at and we looked at that video of them walking,” one anonymous juror told the New York Times, but “we could not see her leg dragging. We could not see her eyes shut.” Juror James Galullo told Alice B. Lloyd of this magazine: “We all agreed that she was walking hand-in-hand, arm-in-arm, smiling.” Alternate juror Elise Wiener told Robby Soave of Reason: “She was strolling with him with a big grin.”

This did not prevent news outlets, including the New York Times and the Yale Daily News, from repeating the prosecution’s characterization of the videos. Both papers could have obtained and posted the footage to let readers judge for themselves. They chose not to do so.

Hours after the alleged rape, the accuser told a Yale health center nurse that she needed a Plan B morning-after pill due to having had consensual sex with a regular partner. At the trial, she explained that she was “too traumatized” to tell the nurse of the alleged assault.

After meeting later that day and the next day with several friends—including a former boyfriend who took her phone, dialed Yale’s sexual-misconduct office, and handed the phone back to her—the initially irresolute accuser filed a complaint against Khan with the sexual-misconduct office and then went to the Yale police department.

The details of the process are unclear, but university officials, the university police, and the accuser decided to ask the New Haven state’s attorney’s office to prosecute Khan criminally rather than rely on the internal disciplinary process.

It is rare for the kind of sexual-misconduct accusations that are typically filed by university students to be sent on to a public prosecutor. The only plausible explanations here are that Yale officials felt the accusations in this case (unlike in most) to be serious enough to qualify legally as sex crimes or that the accuser herself, as was her right, decided to press criminal charges.

Yale suspended Khan on an emergency basis on November 9, 2015, a week after the accuser reported him. It also threw the Afghan native, who had few connections in the United States, out on the street on very short notice.

***
Much of the national coverage of the case has suggested that the verdict was a miscarriage of justice, but that belies any review of the trial evidence, little or none of which would have been uncovered and considered in a Yale disciplinary proceeding.

At a time when the accuser testified she was concerned that Khan was becoming aggressive in pursuing her—and had tried to enter her dorm room uninvited and had responded angrily when she told him to leave—she was also sending playful texts to him sprinkled with smiling and giggling emoticons. She even texted him a Shakespeare poem, “From fairest creatures we desire increase,” the first of the so-called “procreation sonnets.”

The accuser’s claim that after the two had met for Halloween dinner, Khan followed her into her entryway and tried to push his way into her room is almost impossible to reconcile with Yale’s electronic dorm card-key system. She swiped into her entryway at 6:47:31 p.m.; he swiped into his just seven seconds later. For her story to be accurate, he would have had to follow her into her entryway, try to push his way into her room while “I was trying to push him back,” and then go off to his own entryway and swipe his card-key, all in seven seconds flat.

The timeline of the evening suggests it was unlikely that the accuser could have been completely incapacitated by alcohol at the time of the alleged rape as she claimed. By her own account, she had five drinks containing varying amounts of alcohol at the party. While friends testified that she was somewhat—one said extremely—intoxicated when she left the party for the concert, it appears clear from the testimony that she stopped drinking between 10:50 p.m. and 11:40 p.m. The timeline is complicated by the fact that clocks were turned back at 2 a.m. due to daylight savings time, but it seems the accuser had her last drink at least four-and-a-half hours before the alleged rape, which apparently occurred after a phone call that Khan placed at 1:55 a.m. from the accuser’s sofa to his longtime girlfriend in Maryland (a call that lasted 141 minutes).

The two have an open relationship, and the girlfriend testified that she already knew the accuser from a summer physics class at Yale. She and Khan both stated that he handed his phone to the accuser at one point and the two women spoke briefly. “I said, ‘Hi,’ and she said, ‘Hi,’ ” the girlfriend told the court. She recalled the complainant used the girlfriend’s name when saying “Hi” to her. She said this was the extent of their conversation, and that she and Khan then continued talking for another hour and a half. Khan testified that the accuser had already given him oral sex before the phone call and asked him to “come to bed” after it ended.

One friend, Josh Clapper, initially told university police that the accuser “did not seem intoxicated” at the concert, which came after her final drink. At trial, his recollection had changed and he, like other friends of the accuser, said she needed support walking.

The apparent passage of those four-and-a-half hours, during which the accuser said she vomited two or three times, casts doubt on her assertions such as “I tried to say ‘stop’ but I’m not sure if anything came out. I couldn’t communicate because I was that inebriated.”

The accuser testified “he was pinning my legs and arms so I couldn’t move.” But Pattis noted that in her 61-page statement to police, she had never suggested that Khan pinned her arms.

After the alleged rape, the accuser awakened with Khan in her bed and told him she was embarrassed and disgusted by her behavior, by his account. After he departed, leaving two condoms that bore his DNA in her room—not the sort of oversight one might expect from a man who feared he might be accused of rape—he sent her a text at 6:14 a.m. She texted back “LOL.” Then Khan responded with a winking emoticon and she replied, “Go to sleep and this will stay between us that goes for you too.”

Jurors also took notice when a prosecution expert witness had to admit that the DNA found in a swab of the accuser’s anus the day after the alleged rape had come from a male other than Khan. This was particularly relevant as the accuser had told police that she had not had sex in six months. The news media completely ignored this crucial fact.

The accuser also claimed that she discovered after Khan left that he had taken her phone and used it to send messages declining her friends’ invitations to meet up after the concert. If true, this would be direct evidence that Khan was trying to isolate the accuser. But he denied taking or using her phone. This was a he-said, she-said standoff—and the jury clearly believed that he was the more credible witness.

***
What happens now? Saifullah Khan’s lawyers have requested that Yale readmit him and allow him to complete his last semester as a cognitive-science major. There is also an online petition circulating that demands “that Yale University continue to follow the guidelines laid out by the Obama administration, and continue to uphold Saifullah Khan’s suspension.” It had nearly 50,000 signatures as this magazine went to press.

It seems most likely that Yale’s University-Wide Committee on Sexual Misconduct (UWC) will employ a secretive campus proceeding to pass judgment on Khan with minimal due process, no speaking role for defense lawyers, no meaningful cross-examination of the accuser, and no transcript of the proceedings.

The UWC defines “sexual misconduct” as “a range of behaviors including sexual assault (which includes rape, groping and any other non-consensual sexual contact), sexual harassment, intimate partner violence, stalking, and any other conduct of a sexual nature that is non-consensual, or has the purpose or effect of threatening or intimidating a person or persons.” The policy adds: “Much sexual misconduct includes nonconsensual sexual contact, but this is not a necessary component. For example, threatening speech that is sufficiently severe or pervasive to constitute sexual harassment will constitute sexual misconduct.”

Any reasonable penalty would have to take account of the fact that Khan’s education has already been derailed for two-and-a-half years by an unwarranted accusation and a criminal proceeding.

It can fairly be said that Khan was insensitive in having sex with a woman he did not know well a few hours after she had downed a lot of alcohol and vomited repeatedly and in placing a 141-minute phone call to his girlfriend in the accuser’s presence, in between having oral sex and sexual intercourse with her. But by his account, the accuser was eager to have sex. And Yale’s rules do not mention insensitivity or any other violation of its policy less damning than “sexual misconduct,” a vaguely defined phrase that surely requires more than insensitivity and in many circles carries a connotation of sexual predation.

Some longtime observers of Yale’s process consider it possible—even probable—that despite the verdict of the criminal trial, the UWC will still find Khan responsible for “sexual misconduct” and expel him.

Indeed, his lawyers have appropriately called the UWC “a political entity draped in the presumption of guilt” that “rushed to judgment in this case” and that has more broadly “embarked upon a secretive Jacobin-style crusade in which complainants were pressured to come forward, procedural due process was ignored, and exculpatory evidence was casually and conveniently displaced.”

They have also pointed out that the chief of the Yale Police Department, Ronnell Higgins, recently told the Yale Daily News that his officers “are trained to ask the right questions . . . placing emphasis on a victim advocacy approach.” That sounds inconsistent with our legal culture’s hallowed presumption of innocence—which is nowhere mentioned in the UWC’s procedures. Not one of the sexual-misconduct complaints filed by female Yale students against males since the university’s current reporting system started in 2012 has been found to be false.

Asked by email for comment on the verdict and on what Yale might do now, Yale spokesman Tom Conroy responded: “It would not be appropriate for Yale to comment on the verdict in a criminal case, especially one that involved two Yale students. In regard to internal adjudications, Yale’s ability to comment on individual cases is limited by federal privacy law and Yale’s confidentiality policies. The University believes that confidentiality is critical to the integrity of our processes, and, for that reason, it does not confirm or deny that a specific allegation has come before the University-Wide Committee on Sexual Misconduct.”

Defending Yale’s overall handling of sexual-misconduct allegations, Conroy said that critics do “not take into account the process that Yale provides, which includes written and specific notice of the charges; the right to an adviser, who may be an attorney; the opportunity to present evidence and suggest witnesses; a written investigative report prepared by an impartial fact-finder; a hearing before a trained panel of members of the Yale community; the opportunity to submit questions through the panel to witnesses and the opposing party; a written panel report; the opportunity to respond in writing to the panel report; a written decision by a decision maker separate from the panel; the right to submit a written appeal to a second decision maker; and a written appeal decision.”

Judge José Cabranes, a U.S. circuit judge and Yale’s first general counsel, expressed another view in a devastating 2017 article in the Yale Law & Policy Review. While focusing mainly on threats to freedom of expression at Yale, he also assailed the university for its handling of sexual-misconduct accusations. “Today,” Cabranes wrote, “as a matter of Yale University law . . . in a sexual-misconduct proceeding, even for an allegation of non-criminal conduct. There is:

• No right to a public hearing, or even to a complete record of the private hearing;

• No right to have counsel speak on one’s behalf;

• No right to call friendly witnesses, much less confront and cross-examine adverse witnesses; and

• To top it all off, no assumption of innocence until proven guilty—merely a finding of wrongdoing that rests on a preponderance of the evidence (the lowest standard of proof known to American law).”

Conroy did not mention these aspects of Yale’s process. And while touting the “trained panelists” who pass judgment on accused students, he also failed to mention the fact that Yale (like many other universities) has taken great pains to keep secret the materials it uses to train them.

Why so secretive? As KC Johnson and I detailed in these pages last September, the training regimes are designed more to put a thumb on the scales toward guilt than to ensure a fair inquiry. The programs we were able to review were permeated with unsupported assertions about how false complaints are rare and that an accuser who contradicts her own prior accounts or established facts should be seen not as deceptive but as a victim of “trauma.”

Cynthia Garrett, a lawyer who is co-president of Families Advocating for Campus Equality, a group supporting students who say they were falsely accused, sat through the whole Khan trial and spent much time giving moral support to the defendant. She came away from New Haven, she says, “with the disturbing realization that, as a whole, the Yale community is insular, dogmatic, and intolerant of diverse perspectives. It became apparent from my interactions with at least one Yale Daily News reporter that any who dare expose alternate viewpoints are quickly shamed into silence.”

Saifullah Khan himself is far more upbeat. I asked him about the trial, and he wrote, “As dark as this experience has been so far, the foundation of this democratic republic kept my beliefs strong. And as divided as this country may seem online, I have found love and hospitality at every corner of this country.”

Stuart Taylor Jr. is co-author, with KC Johnson, of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities

The post The Yale Rape Trial Isn’t Over Yet appeared first on Stuart Taylor, Jr..

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 fear from Mueller, but on December 3, Christopher Ruddy went on ABC’s This Week and said, “Robert Mueller poses an existential threat to the Trump presidency.” Ruddy heads the conservative media outlet Newsmax and is a close Trump confidant. Back in June, just after visiting the White House, he claimed on the PBS NewsHour that the president was “weighing” firing Mueller. Trump and his aides never explicitly disputed the claim, and proxies like Newt Gingrich and Rush Limbaugh called for Mueller’s firing at the same time.

Flynn admitted lying to the FBI—a federal crime—about his phone conversations last December 29 with Russian ambassador Sergey Kislyak. He falsely denied that he had talked to Kislyak about Russia’s refraining from responding to the sanctions being imposed by the Obama administration and about help with delaying or defeating a pending U.N. Security Council resolution about Israel’s settlements program. In his plea agreement, Flynn promised to cooperate fully with the special counsel.

Signs that Jared Kushner may be next in Mueller’s sights include reports that he was involved in telling Flynn what to say to Kislyak about the sanctions and was the “very senior member of the Presidential Transition Team” who, according to the court papers, “directed Flynn to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.” Mueller’s investigators interviewed Kushner last month about Flynn’s contacts with the Russian government and a December 2016 Kushner-Flynn-Kislyak meeting.

Trump can certainly pardon Kushner if it came to it—and Don Jr.—but experts disagree on whether a president can constitutionally pardon himself. A self-pardon would provoke a bigger backlash and louder clamor for impeachment than any effort to fire Mueller. Trump seems unlikely to go the self-pardon route before the waning days of his administration. It is groundwork for firing Mueller that many think is being laid.

Since May, Trump has repeatedly trashed the criminal investigation into his campaign’s suspected collusion with Russia as a “witch hunt,” a “made-up story,” and a “hoax.” In recent days, conservative media outlets and politicians and various Trump allies have also begun asserting that Mueller and the FBI are biased against Trump and that they, along with the Justice Department, have dodged subpoenas by congressional Republicans that would have turned up such discrediting documents as anti-Trump texts from a top FBI investigator on the Mueller probe, Peter Strzok. (Adding to the conspiracy theories is that Strzok was previously one of the top figures in the FBI investigation of Hillary Clinton’s email server.) Mueller removed Strzok from his team last summer to avoid accusations of partisan bias. But the suspicions among Trump supporters are growing. In its lead editorial on December 5, the Wall Street Journal claimed that the special counsel “is too conflicted to investigate the FBI and should step down in favor of someone more credible.” The same day, Fox News’s Sean Hannity, one of the most vehement critics in the media of Trump’s perceived enemies, called Mueller “a disgrace to the American justice system” and said his team was “corrupt, abusively biased, and political.”

Flynn’s plea bargain and cooperation with Mueller suggest the possibility that the special counsel is developing allegations of criminality—such as complicity in Flynn’s alleged lies to the FBI—against figures at or near the highest levels of the Trump transition.

Trump fired Flynn as his national security adviser on February 13. The purported reason was Flynn’s false statement to Vice President Mike Pence that he had not discussed the sanctions with Kislyak in December. But Flynn’s “resignation” did not come until after the Washington Post had reported his discussion with Kislyak and not until 17 days after acting attorney general Sally Yates had warned White House counsel Don McGahn—who in turn told Trump—that Flynn had lied to Pence and was vulnerable to blackmail by Russia. Trump’s personal lawyer, John Dowd, has admitted that the president knew by late January that Flynn’s account of the Kislyak interview to the FBI had probably been false.

On February 14, Trump had an Oval Office meeting with FBI director James Comey. According to Comey’s sworn testimony (which Trump has contradicted), the president said to him: “I hope you can see your way to letting this go, to letting Flynn go. He is a good guy.”

Trump fired Comey in May and later told Russian officials in an Oval Office meeting that this had relieved “great pressure” from the Russia investigation. On December 3, Trump touched off renewed accusations of obstruction of justice when he tweeted that he had fired Flynn because “he lied . . . to the FBI” as well as to Pence. This amounted to an admission that Trump knew Flynn had lied to the FBI before the president’s alleged request to Comey about “letting Flynn go” and before Trump said in a February 16 news conference: “I don’t think [Flynn] did anything wrong.” Bizarrely, defense lawyer Dowd later claimed that he had drafted the self-damaging tweet for Trump.

* *

If Trump comes to feel threatened enough to try to fire Mueller and weather the backlash, he will find it much trickier as a legal matter than it was to fire Comey.

Comey served at Trump’s pleasure. But Mueller was appointed by acting attorney general Rod Rosenstein under a 1999 Justice Department regulation that limits the president’s power to remove him. (Attorney general Jeff Sessions has recused himself from the Russia investigation.) The regulation provides that a special counsel can be removed only by the attorney general— not the president—and only “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

Mueller is also protected by a much older general principle—reaffirmed by the Supreme Court in 2010—that when Congress has empowered a department head, such as the attorney general, to appoint his own subordinates, “it is ordinarily the department head, rather than the President, who enjoys the power of removal.” The president clearly could order Rosenstein to fire Mueller and could claim that the special counsel has a conflict of interest because of his longstanding, close professional relationship with Comey. But Rosenstein knew about that relationship and saw no conflict when he appointed Mueller. And he has assured Congress that absent “good cause,” he would refuse a Trump order to fire Mueller.

Such a refusal would end with Rosenstein resigning or being fired by the president. In that event, under the order of succession provided by Congress, associate attorney general Rachel Brand would become acting attorney general. It’s quite possible that Brand, an experienced Washington hand, would also refuse to fire Mueller. Trump could then proceed on down the Justice Department chain of command in the hope of finding someone willing to violate the regulation and fire Mueller—and, in the process, to do grave damage to his or her own professional reputation. This embarrassing charade would amplify calls for Trump’s impeachment.

Trump’s other option, perhaps better suited to his self-image, would be to tell Mueller personally, “You’re fired.”

But that, too, would be contrary both to the 1999 regulation and to the principle that only department heads can fire their own subordinates. Trump might avoid the first problem (but not the second), noted Neal Katyal in an op-ed for the Washington Post, if he ordered the special-counsel regulations repealed and then fired Mueller himself. (Katyal headed the Justice Department working group that wrote the 1999 regulation.)

Putting aside the resulting outcry and impeachment efforts in Congress, would that be the end of the criminal investigation? Legal experts have offered differing opinions.

Marty Lederman, a Georgetown law professor who held a high-level position in the Justice Department’s Office of Legal Counsel under President Obama, stressed on the Just Security blog that “the President himself cannot remove Mueller.” He cited both the principle that only department heads may remove their own appointees and the 1999 regulation, dismissing as weak the argument that the Constitution empowers the president to abrogate the regulation and then fire Mueller.

There’s a Watergate parallel here, with the famous firing of special prosecutor Archibald Cox—the “Saturday Night Massacre” of October 20, 1973. Lederman suggested that the reason “why Richard Nixon did not try to personally remove Archibald Cox” was that the president knew he lacked the power to do so.

Instead, Nixon ordered attorney general Elliot Richardson to fire Cox; Richardson refused and resigned; this made deputy attorney general William Ruckelshaus the acting attorney general; he, too, refused and resigned; and finally solicitor general Robert Bork, the next in the line of succession as acting attorney general—who unlike Richardson and Ruckelshaus had not promised Congress that he would protect the special prosecutor—fired Cox. Bork then appointed Leon Jaworski to replace him.

Josh Blackman of the South Texas College of Law argued on the Lawfare blog that, contrary to Lederman, Trump has the constitutional authority to “revoke the regulation itself and in so doing obliterate Mueller’s whole office. . . . The protection against removal is ultimately a political one, not a regulatory or legal one.”

Blackman argued that the detailed history showed that Richardson, Ruckelshaus, and Bork all assumed that Nixon had the constitutional power to fire Cox personally, despite the regulation then in force that Cox could be fired only by the attorney general and only for “extraordinary impropriety.” That said, Blackman acknowledged that to the public at large, “the termination of Mueller would amount to an admission of guilt and obstruction of justice.”

Jack Goldsmith, who headed the Office of Legal Counsel under President George W. Bush, wrote on Lawfare that there are “good constitutional arguments” both for and against the idea that Trump has the power to “blow through the regulation and fire Mueller himself.”

In any event, thought Goldsmith, if Trump did that, “I would predict massive resignations within the DOJ and White House. . . . Congress would rise up quickly to stop the President, and the pressure on the cabinet would be enormous as well. If I am naïve in thinking this, then we are indeed in trouble.”

Amidst the political firestorm, would Mueller take Trump to court to challenge the legality of the firing? The answer is unclear. But he would be strongly urged by many colleagues and friends that it was his duty to the rule of law to fight Trump in court—especially if Trump tried to fire Mueller’s entire staff, leaving allegations of presidential criminality hanging over the nation with no resolution in sight.

Purely as a legal matter, a Mueller lawsuit would get little help from the 1999 regulation, which states that it “may not be relied upon to create any rights, substantive or procedural, enforceable [in court] by any person or entity.” In other words, the regulation is not judicially enforceable. Mueller might thus base any lawsuit mainly on the older principle that because an attorney general appointed Mueller, only an attorney general can remove him.

* *

The high stakes of any Mueller-Trump lawsuit, together with the legal uncertainties debated by Lederman, Blackman, and Goldsmith, might well propel the case quite rapidly through the federal district and appeals courts and into the Supreme Court.

It could lead to a historic decision, reminiscent of United States v. Nixon in 1974 or Clinton v. Jones in 1997. The former ordered President Nixon, by an 8-0 vote, to turn his White House tapes over to Watergate special prosecutor Leon Jaworski and doomed his presidency. The latter, a unanimous decision in the Paula Jones sexual harassment lawsuit, rejected Clinton’s claim that he could not be sued while he was president. It would indirectly force him to testify about what he did with Monica Lewinsky and lead, in turn, to his impeachment in 1998 for lying under oath and obstructing justice.

Fueling the detailed arguments in a Mueller-Trump battle would be a longstanding dispute pitting conservative scholars and jurists who believe the Constitution empowers the president to fire any federal prosecutor or other executive branch official at will against more liberal jurists who see restrictions on the firing power as essential to presidential accountability.

In a third historic win for champions of presidential accountability, the Court upheld in Morrison v. Olson the 1978 Ethics in Government Act provision sharply restricting presidential power to remove court-appointed “independent counsels.” (The 1988 decision was 7-1, with the late Antonin Scalia offering a passionate dissent.) But the 1978 provision lapsed in 1999, amid a bipartisan consensus that it had created incentives for overzealous prosecution. The 1999 Justice Department regulation under which Rosenstein appointed Mueller is less potent. But the regulation is not nothing. And the Court might reinvigorate, as a valuable check on presidential arbitrariness, the principle that a chief executive who cannot persuade his own political appointees to fire a subordinate may not go over their heads and do the firing himself.

How might the Court rule in a Mueller-Trump case?

It would not be surprising to see the four more liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) side against Trump. It’s also quite possible, if less likely, that all four of the more conservative justices (John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch) would side with Trump. That would leave Justice Anthony Kennedy in his accustomed role of casting the deciding vote. Not many Kennedy-watchers would bet on his siding with Trump.

But it’s also quite possible that the justices—especially if they were closely divided on the question—might dust off the so-called “political question doctrine” to rule that the Court should leave the fate of the Mueller investigation, and its impact on the Trump presidency, to the political process. That would of course include the impeachment process, which would be well under way by the time any Trump effort to fire Mueller came before the Supreme Court.

* *

Robert Mueller has surely long since begun drafting the confidential report that the 1999 regulation requires him to provide at the conclusion of his work to the acting attorney general. Political pressure will likely see it then shared with Congress and the public.

If it comes down to little more than ordering or encouraging Flynn to lie to the FBI, and gratefully welcoming Russian hacking and dissemination of dirt about Hillary, then the Mueller investigation will probably end with no blockbuster prosecutions and the calls for impeachment will fade.

If, on the other hand, the evidence revealed by Mueller and congressional investigators were ugly enough to turn even most Republicans against Trump, he might be on his way out, by impeachment and removal. Then it would be time to ponder the constitutionality of the self-pardon.

Stuart Taylor Jr., a Washington, D.C.-based writer and lawyer, is the coauthor, with KC Johnson, of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities .

The post You’re Fired! appeared first on Stuart Taylor, Jr..

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 have sex again. Further, a friend of the accuser, who saw her shortly after the incident, recalled her raving about her “really hot” experience.

Nonetheless, Brown’s disciplinary panel returned a guilty finding by 2-to-1. The decisive vote came from Besenia Rodriguez, the university’s associate dean for curriculum.

In subsequent court testimony after the accused sued Brown, Rodriguez admitted that she had not considered the accuser’s text messages or other post-incident behavior as having any bearing on the case. The reason, she said, was the hours of training that Brown had provided to prepare her to adjudicate the complaint—training required by the federal government. Rodriguez was specifically told that the impact of trauma on sexual-assault victims often causes them to behave in counterintuitive ways, such as not being able to recount a consistent set of facts or choosing to communicate with (rather than to avoid) the alleged assailant. “I felt like it couldn’t—I couldn’t really put myself in her shoes to understand why she was representing it that way,” explained Rodriguez, “so best not to attempt to judge her behavior.”

But judging the accuser’s behavior, noted U.S. District Judge William Smith, “was precisely her job as a panel member: to interpret the evidence and make factual determinations about it.” He added, “It appears what happened here was that a training presentation was given that resulted in at least one panelist completely disregarding an entire category of evidence”—evidence severely damaging to the accuser’s credibility.

Smith invalidated the university’s decision, noting, even apart from Rodriguez’s dereliction of duty, the overall process was far from equitable. The Brown official who designed the training Rodriguez received, Alana Sacks, did not respond to a request for comment.

Since 2011, the federal government has required all universities that receive federal money to provide “training or experience in handling complaints of sexual harassment and sexual violence” to adjudicators and investigators. Since nothing in the experience of most academics prepares them to competently investigate an offense that’s a felony in all 50 states, it makes sense to train those who are assigned to investigate campus sexual-assault allegations. But the ideological regimes used on many campuses are designed more to stack the deck against accused students than to ensure a fair inquiry. The risk of injustice is enhanced by the fact that, to the best of our knowledge, no school discloses the contents of its training materials to accused students before commencing the disciplinary process. The contrast between this training regime and the instructions given by judges to jurors in criminal trials—most obviously, that they should presume defendants innocent until proven guilty—is stark.

“In a criminal trial,” says former Baltimore state’s attorney Gregg L. Bernstein, “we ask jurors to use their common sense and apply their own life experiences to determining questions of credibility and guilt or innocence. We do not ‘train’ jurors at the expense of considering equally plausible factors as to why [an alleged] victim’s testimony might not be credible.” Bernstein, who during his term in office created a special unit to handle sexual-assault cases, believes a balance “can be struck in which the victim’s account is given credence and she is respected, while at the same time, the alleged assailant has the right to test the story. We should ask for no less when a person’s reputation can be altered for life by these types of [campus] allegations.”

The training mandate originated with the Obama administration’s 2011 “Dear Colleague” letter, which dictated campus procedures for sexual-assault allegations that dramatically increased the chances of guilty findings. Expanded guidance in 2014 from the Department of Education’s Office for Civil Rights ordered that the training include “the effects of trauma, including neurobiological change”—a phrase pregnant with hidden meaning. The Obama training requirements (without the “neurobiological change” part) were then formalized in a binding federal regulation in 2015.

While Secretary of Education Betsy DeVos has rescinded the 2011 and 2014 Obama commands, the 2015 regulation keeps most of the Obama training mandate in place. All the while, the secrecy of almost all the training materials has enabled them largely to escape public scrutiny.

“The biggest problem with these training materials,” says Justin Dillon, a Washington, D.C., lawyer who has defended dozens of students accused of sexual assault, “is that if the accuser comes in, contradicts herself and the evidence, all that gets explained away because of ‘trauma.’ Junk science like that makes it extraordinarily hard for students to defend themselves effectively. Schools cherry-pick studies without actually understanding anything about them; they just take this chicanery at face value. Students would need to first pay a lawyer, and then pay that lawyer to find a neuroscience expert who is both willing and qualified to take on this issue. And if you think lawyers are expensive, wait until you see how much experts charge.”

Middlebury College’s training, for instance, urges adjudicators to “start by believing” the accuser, while asking themselves whether the accused student is “who he said he is.” The training materials twice feature a hypothetical campus rapist announcing: “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.”

The college further orders that in order to be “objective,” investigation reports must not use the word “alleged” before “victim” or “sexual assault” and must avoid passages such as “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect” or the “victim has inconsistencies with her story.”

The role of the investigative report is especially important at Middlebury because, like more and more schools, it has abandoned disciplinary hearings on sexual-assault claims in favor of a single-investigator system. This was designed to shield the accuser from cross-examination, but also empowers a school-appointed official to serve as “detective, judge and jury,” in the words of Greg Lukianoff, president of the Foundation for Individual Rights in Education. In the specific system used at Middlebury, a college administrator renders the final decision based primarily on a report prepared by the investigator. The accused student and his representatives have no opportunity to cross-examine the accuser or the investigator. The training’s restrictions on the content of the investigator’s report thus have a direct effect on the final outcome.

After we wrote about the Middlebury training, the firm that conducted it, Margolis Healy, removed the associated material from its website. The company did not respond to a request for comment.

Eric Rosenberg, an Ohio lawyer who has represented accused students in both state and federal lawsuits, says that the “systemic bias” in training materials extends to essentially “mandating adjudicators shield accusers from exculpatory evidence” as it might “re-victimize the victim.” A state or federal judge, Rosenberg explains, “would undoubtedly find [that any] jury pool members who promise not to re-victimize a party who alleges an injury should be stricken for cause.”

Beyond putting a thumb on the scale towards guilt, campus-training materials are permeated by highly debatable psychological theories, spawned in part by the Obama administration’s requirement of training about “neurobiological change.”

Emily Yoffe’s blockbuster September article in the Atlantic on “The Bad Science Behind Campus Response to Sexual Assault” uncovered widespread use of a concept called “tonic immobility.” Yoffe explored the pervasive influence of Rebecca Campbell, a Michigan State psychology professor, who claims that as many as half of all sexual-assault victims experience tonic immobility and that this condition, along with other neurological effects that occur during an assault, renders them unable either to resist or to recall the alleged attack accurately later. Campbell has done no empirical research on tonic immobility, and there is no clear evidence that the phenomenon—in which some prey animals go into a type of temporary paralysis when threatened—occurs in humans.

Training at Harvard Law School in 2014 borrowed heavily from Campbell’s ideas about tonic immobility, according to an article by Harvard Law professor Janet Halley. She said the school provides its tribunals with “a sixth-grade level summary of selected neurobiological research,” which claims that rape victims’ trauma causes neurological changes, which can result in tonic immobility. This “can cause the victim to appear incoherent and to have emotional swings, memory fragmentation, and ‘flat affect’ [so that her statements] can be ‘[m]isinterpreted as being cavalier about [the event] or lying.’ ” The Harvard training, Halley wrote, is “100% aimed to convince [disciplinary panelists] to believe complainants, precisely whenthey seem unreliable and incoherent.”

A still-pending case led U.S. District Judge John Padova to suggest that the University of Pennsylvania’s training of campus adjudicators is so biased that it may violate Title IX by discriminating against males. In a September 13, preliminary ruling, Padova cited the university’s training materials as a basis for rejecting Penn’s motion to dismiss a Title IX claim in a lawsuit filed by a student the school had found guilty of sexual assault.

Penn used a training document, “Sexual Misconduct Complaint: 17 Tips for Student Discipline Adjudicators,” disseminated by Legal Momentum, a women’s advocacy group that has harshly assailed Betsy DeVos’s efforts to make the handling of campus sexual-assault complaints more fair. The 17 “tips” about accusers include:

“The fact that a complainant recounts a sexual assault somewhat differently from one retelling to the next may reflect memory processes rather than inattentiveness or deceit.” Legal Momentum provides no guidance on how adjudicators should identify “memory processes,” “inattentiveness,” or “deceit.” The implication that inconsistencies are irrelevant to assessing credibility is contrary both to our legal traditions and human experience.

“Victim behaviors during and after a sexual assault may appear counterintuitive to those unfamiliar with sexual assault.” The Legal Momentum document goes on to offer examples suggesting that virtually any conduct or statement by an accuser—resisting or not resisting the alleged assaulter; subsequently contacting or subsequently avoiding the alleged assaulter; testifying emotionally or listlessly; recalling or not recalling events—is consistent with the guilt of the accused.

“False allegations of rape are not common” and “research places the [false rape report] rate in the general population between 2% and 10%.” But this research defines “false” extremely restrictively and excludes a great many cases in which the accused is clearly not guilty of sexual assault and many more in which the available evidence leaves unclear the veracity of the accuser’s account.

As for accused students, Penn’s training material seems designed to sow skepticism about their claims of innocence. The “typical” campus rapist, according to the document, might possess many “apparent positive attributes such as talent, charm, and maturity [and] a deep commitment to community service.” But such traits are “generally irrelevant.” Campus rapists “[p]lan and premeditate their attacks, using sophisticated strategies to groom their victims for attack and isolate them physically.”

Bernstein, the former top Baltimore prosecutor, expressed concern that the Penn training did not meet the “standards” necessary for an “objective process” that could determine the truth of allegations. Most of the tips, he notes, “leave a clear presumption of guilt in the investigator or adjudicator’s mind and provide a victim-centric explanation for otherwise inconclusive, inconsistent, and exculpatory testimony to the exclusion of other factors.” Legal Momentum did not respond to a request for comment.

The training materials and practices that have surfaced from other institutions are equally one-sided.

George Mason’s training plan contains a lengthy section instructing investigators and adjudicators to “avoid an implication of blaming a complainant,” such as by holding “the belief or expressing an opinion that a person who is alleging sexual assault was in some way responsible, whether wholly or in part, for what happened.” Testing an accuser’s truthfulness by asking about her pre-incident behavior with the accused student or why she waited for months to file a report or why she did not go to the police would all constitute blaming the victim. If even considering asking any such questions, the adjudicator is ordered by the training to adjourn the meeting and consult with fellow panelists before proceeding. There is no comparable caution regarding questions asked of accused students.

A University of Texas blueprint for sexual-assault investigations recommends reducing “the number of reports prepared by investigators,” so as to frustrate defense lawyers’ efforts to point out contradictions among an accuser’s statements. This recommendation belies any pretense that the university’s investigators are neutral fact-finders.

The training at Ohio State tells disciplinary panelists that as many as “57 percent” of college males “report perpetrating a form of sexual[ly] aggressive behavior,” among other points seemingly designed to prompt guilty findings. We are aware of no reliable study that makes such a statistical claim. The judge who cited the 57 percent did not say where Ohio State got it, and the school’s full training materials remain sealed.

Cooper Union’s training program describes a “typical” sexual-assault case as the work of a scheming predator: An upper class male who meets a freshman female at a party, accompanies her alone back to her room, and “pours ten shots out of a bottle he pulls out of his backpack” for her to drink. The accuser can later recall nothing, but believes that they had sex.

At SUNY-Plattsburgh, the school’s Title IX coordinator trains the members of sexual-assault hearing panels. In a recent appellate hearing in New York state court, it was revealed that she had misstated the university’s own definition of consent to make a guilty finding more likely, by ruling out “consent by conduct” to sex. SUNY’s lawyer conceded to the appellate judges that the coordinator’s explanations of Plattsburgh policy to the tribunal members were “admittedly confusing.”

The head of a Title IX disciplinary panel at the University of North Carolina, Charlotte, testified in federal court that his institution’s training prompted him to deny the accused student a chance to present friendly, post-incident text messages the accuser sent to him, even though they contradicted her claim that she had come to fear him after they had sex. The panel chair said that the training allowed the tribunal to consider only any messages that “directly answer[ed] the question of consent, to consent to sexual acts.” A federal judge called this exclusion of exculpatory evidence “troubling” and denied the university’s motion for summary judgment.

Such training regimes are the norm across the country, according to four lawyers we talked to and to public statements by two others who have through lawsuits obtained the training materials adopted by many schools. The training materials used by the vast majority of colleges still remain secret.

The new regulations that Betsy DeVos has promised to issue regarding campus proceedings—probably next fall, after publishing proposed rules and considering public comments—will likely continue to require training of some kind, which, at least for investigators, is sensible if it is done well.

Meanwhile, the training materials we have seen are flatly contrary to the Trump administration’s interim guidance for colleges on campus sexual-assault allegations, which provides that “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations may violate Title IX.” DeVos has repeatedly called for colleges to make their processes fair to accused students as well as their accusers.

The time is ripe for some of the accused to file complaints with the Department of Education’s Office for Civil Rights challenging these training programs as violating Title IX’s prohibition on sex discrimination. Such complaints would encourage the Education Department to require that schools make public the contents of their training for sexual assault investigations and tribunals. The accused—many of whom have wrongly assumed that they would be treated fairly and the truth would set them free—would then know what they are up against.

KC Johnson and Stuart Taylor Jr. are the authors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (2017).

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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 22 let universities know how to comply with the Education Department’s requirements during the time between the end of the Obama decrees and the final adoption of new, carefully considered regulations.

DeVos and her team have good reason for this two-stage approach to reforming enforcement of Title IX, the federal law prohibiting sex discrimination in higher education. She has vowed not to emulate the process used by the Obama administration in its now-notorious decrees of 2011 and 2014, when it issued dozens of pages of detailed “guidance” on Title IX compliance without prior notice and without giving the public a chance to comment.

The Obama decrees flouted basic principles of sound policymaking and, in the view of many experts, violated the notice-and-comment provisions of the Administrative Procedure Act of 1946. Catherine Lhamon, Obama’s second head of the Education Department’s Office for Civil Rights, recently derided those provisions as “essentially a popular vote.”

The Education Department’s announcement on September 22 was presaged two weeks earlier in a major address by DeVos at George Mason University’s law school, where she expressed grave concern about the unfairness of the Obama decrees and of many campus sex tribunals and declared that “no student should be forced to sue their way to due process.” Around 180 accused students have sued their schools since the Obama administration’s April 2011 “Dear Colleague” letter.

The DeVos criticisms echoed those of distinguished civil libertarians, law professors, and journalists. They have deplored the now-revoked Obama requirements that schools, among other measures, use a very low burden of proof (“preponderance of the evidence”) for branding an accused student a rapist; all but abolish meaningful cross-examination of accusers; and subject accused students to a form of double jeopardy by allowing accusers to appeal not-guilty findings.

These requirements dramatically increased the chances of finding an innocent student guilty, as scholarly research by John Villasenor has confirmed. As a group of Penn Law School professors stated, the Obama-era guidance placed “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” And as 28 Harvard law professors asserted, this led too many schools to establish procedures that “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.”

The “Dear Colleague” letter rescinding the 2011 and 2014 guidance quoted each of these passages, emphasizing the importance of due process in a way that would have been inconceivable during the Obama years.

The frenzied reactions of many Democratic politicians and campus activists to DeVos’s carefully reasoned, balanced speech and to the September 22 guidance show how difficult it will be to replace today’s systematic discrimination against accused students with disciplinary systems that will be fair to accusers and accused alike.

The Education Department announcement included an apt quotation from one of the nearly 70 state and federal court decisions upholding (often on preliminary motions) lawsuits filed by accused students. The opinion, by Judge F. Dennis Saylor, assailed a decision by Brandeis University in which a student had been found guilty of “sexual violence” for such offenses as awakening his sleeping boyfriend with kisses.

In an understated indictment of the unfairness at the core of the Obama approach, Judge Saylor wrote: “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. . . . Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome.”

The interim guidance, which will remain in place until the Education Department conducts its notice-and-comment process and issues new regulations, points universities toward procedures designed to pursue the truth rather than presume the guilt of the accused.

Thus, for example, the interim guidance allows a college to depart from the Obama-required “preponderance” standard and to use instead the more rigorous “clear and convincing” standard of proof, if that is the standard that the school uses in non-sex disciplinary cases.

The interim guidance also gives colleges the option of allowing meaningful cross-examination, which the Supreme Court has described as “the greatest legal engine ever invented for the discovery of truth,” and of giving accused students the right to appeal without subjecting them to appeals by accusers of not-guilty findings.

But it seems likely that few colleges or universities will respond to the interim guidance by creating fairer procedures. University of California president Janet Napolitano, for example, who had castigated the Obama decrees in a 2015 article, has changed her tune since DeVos started championing due process. Napolitano claimed that DeVos was too focused on “outlier” cases of unfairness and vowed that the UC system would retain its current procedures — which one state judge compared to a “kangaroo” court — no matter what the Education Department does.

Accusers’ rights organizations roundly condemned DeVos’s move and doubtless would join their many faculty supporters in aggressively attacking any college president who chooses fairness to both accusers and accused over presuming male guilt.

If most schools, as we expect, reject the Education Department’s invitation to abandon their current one-sided policies, what will Betsy DeVos do?

We hope and believe that she and her team will issue strong new regulations specifying procedures that schools must use to qualify as fair, including those sketched above.

During the months before new regulations can be adopted, probably the greatest impact of the interim rules will be felt by university lawyers, who can no longer argue in court — as they have done with some success — that any unfairness in their procedures was mandated by the Education Department. That dog won’t hunt any more.

The interim guidelines still leave much to be desired. For instance, the Education Department continues to allow schools to use a deeply problematic, Obama-blessed system in which a single person serves as lead investigator, prosecutor, judge, and jury.

But we hope to see such flaws fixed in the final regulations. And if they are not, the courts might have the last word. In a major decision issued September 25, a three-judge panel for the Sixth Circuit Court of Appeals, including judges nominated by presidents of both parties, ruled against the University of Cincinnati because it failed to give an accused student any chance to cross-examine his accuser.

The Sixth Circuit concluded that in “he said/she said” cases that turn on the credibility of the two parties, a university’s “failure to provide any form of confrontation of the accuser made the proceeding . . . fundamentally unfair.” This was an implicit rebuke to the Obama policy and makes it more likely that DeVos will not merely permit but also require cross-examination rights for accused students.

For the most part, DeVos continues to move in the right direction, against overwhelming odds, to create a fairer system for all students.

KC Johnson and Stuart Taylor Jr. are coauthors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books, 2017).

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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 estimated at between 2 and 10 percent.” A chorus of other publications and groups has made similar claims: “National research indicates no more than 8 percent of rape accusations are false,” wrote Jeremy Bauer-Wolf of Inside Higher Ed. “[A] meta-analysis has shown false reports are extremely rare, constituting only 2-8% of complaints,” declared more than 50 advocacy groups led by the National Women’s Law Center.

So deeply has the almost-all-accused-are-guilty myth become entrenched in the conventional wisdom that even National Review Online published an otherwise astute article by Tiana Lowe, who wrote, “Statistically speaking, false sexual-assault accusations constitute a minority of all claims, maybe 10 percent at most, but likely closer to 5 percent.”

These assertions are unsupported by serious evidence, as the imprecision in the purported upper limit of false reports in the items above indicates. More important, they reveal nothing about the percentage of campus allegations that are true or likely true.

It’s fair for critics of the president to point out his own ugly history of boasting about grabbing women by the genitals and the claims of at least a dozen women that he sexually assaulted or harassed them.

But it’s an abuse of journalistic power to use misleading statistics to dismiss well-founded criticisms by Education secretary Betsy DeVos of the guilt-presuming Obama policy. DeVos’s criticisms are similar to those voiced for years by dozens of prominent liberal law professors from Harvard, Penn, and elsewhere, leading advocates of campus civil liberties, families of railroaded innocent students, respected journalists, and others.

Even if more than 90 percent of accused students—most of whom were never reported to police—were guilty of sex crimes, it would not justify presuming guilt in individual cases. “Fairness is important regardless of the truth or the falsehood of allegations,” in the words of Harvard law professor Jeannie Suk Gersen.

More to the point, people who may be tempted to embrace the de facto presumption of guilt decreed by the Obama administration should know that studies do not show the vast majority of accused students are guilty—that’s a myth.

First, as even Michelle Anderson, one of the most prominent academic defenders of the Obama-era campus sexual assault policies, admitted in 2004, “there is no good empirical data on false rape complaints either historically or currently. . . . As a scientific matter, the frequency of false rape complaints to police or other legal authorities remains unknown.”

The reason is that research on false rape report rates, which involves scholars or activists reviewing files prepared by others, is so subjective as to be of very limited reliability—even in cases that proceed through the criminal justice system, much less the due-process-diminished campus tribunals. The best-known recent studies on false rape report rates, in 2007 and 2010, seemed designed to dramatically understate the number of accused parties who actually were not guilty. Both studies, in which victims’ advocates played major roles, found that the majority of cases were neither true nor false, but instead were incidents in which the accusers abandoned the complaint, or the police dropped them as unsubstantiated, or the evidence was inconclusive.

Both studies also listed as “not false” cases in which an accused student would clearly have been found not guilty of sexual assault even by a campus tribunal. The 2007 study put false reports in a different category from “baseless” claims that did “not meet the elements of the offense.” Its 2010 counterpart, in which the lead researcher used only victims’ advocates to review the case files, similarly counted as “not false” cases in which the accuser alleged something that “did not meet the legal elements of the crime of sexual assault.”

Here’s how the two studies look in visual form. (The second chart has only three data points because the researcher, without explanation, chose not to separate out how many cases did not meet the definition of sexual assault.)

The lead researcher of the 2010 study, University of Massachusetts Boston professor David Lisak, put his own bias on display when he asserted that he wouldn’t describe the 2006 rape claims against Duke lacrosse players as false. This opinion contradicted the conclusions of all serious students of the Duke lacrosse case, led by the North Carolina attorney general, who used DNA, electronic evidence, and a minute-by-minute reconstruction to prove in 2007 that accuser Crystal Mangum’s claims were fabrications.

Moreover, most false rape rate studies analyze complaints to police by nonstudents, not complaints to colleges by students. The distinction is important for at least two reasons. First, deterrence against false campus claims is all but nonexistent, since in the current climate it would be professionally suicidal for an administrator to charge a student with such an offense. Second, college women are often encouraged by campus bureaucrats and by activists to file complaints about legal sexual behavior, such as sex while drinking, that schools increasingly have chosen to classify as “sexual misconduct” by the males. Additionally, none of the studies cited by the media defenders of the Obama policies analyzes cases adjudicated through campus tribunals after the Obama administration unilaterally reinterpreted Title IX in 2011, dramatically ramping up the chances of wrongful findings of guilt.

No wonder such studies have been convincingly and repeatedly discredited as misleading by critics (including us) in articles and books that activist groups and much of the media have ignored. No serious analyst of the data could assert (and even the study authors themselves avoided explicitly asserting) that all or even most of claims in these inconclusive or baseless cases were true simply because not conclusively proven to be lies. Yet that’s precisely what countless journalists and activists have asserted.

The one mainstream publication willing to follow the evidence was the New York Times, which previously had a very poor record in covering issues related to campus sexual assault. After it published an article on July 13 asserting that “national studies show that only a small percentage—between 2 and 8 percent—of students are wrongfully accused of sexual assault,” several critics pointed out the dubious nature of the claim. The Times within days removed the sentence. It also, correctly, added a note stating that “an earlier version of this article erroneously included a reference to studies of false reporting of sexual assaults. The studies examined false reports of sexual assault to the police; they did not examine false reports by college students to campus authorities.”

KC Johnson and Stuart Taylor Jr. are coauthors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books).

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