Biden, Title IX and the Threat to Justice Behind “Vague Positives”

I once read of Chinese official who, during the Cold War, told an American counterpart “all we want is peace.” A billboard they passed during a car ride proclaimed “peace means victory.” Scholastic philosophers insisted terminology must be precisely defined before meaningful discussion can commence. Politicians and bureaucrats determined to pull a fast one speak in vaguely positive terms that can mean anything.
In a recent interview with The Washington Examiner’s Doug McKelway, K. C. Johnson, a leading expert on the subject, explained this is what the Biden administration is doing in its presentation of plans to alter Title IX regulations pertaining to sexual assault.

A Brooklyn College professor of history, Johnson has published two books exposing unjust treatment of falsely accused college students—The Campus Rape Frenzy: The Attack on Due Process at America’s Universities and Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case. The academic rigor he brings to his research is demonstrated by his studies of such topics as President Lyndon Johnson and America’s inter-world war “peace progressives,” his lack of partisan bias by his support for the 2008 presidential and vice presidential candidacies of Barack Obama and Joe Biden.

The Biden administration’s weasel term is “fair process.” Though sounding rather like “due process” it crucially lacks the latter’s precise legal definition. A seemingly hairsplitting difference irrelevant to ordinary speech becomes of great significance when used by those trained as or advised by legal. A superficially reassuring term is used as camouflage cover being “non-specific about whether the accused would be given due process rights.” And the administration keeps free of concrete commitments against which to measure future actions.

Johnson has no doubts about the purpose of this, explaining that the administration’s choice “was no surprise” since “‘ fairness’ is a much more, shall we say, ‘flexible’ concept in terms how universities handle these matters.” So flexible, in fact, that “some universities [are] defining fairness as a university adhering to whatever procedures it promises” when the promised procedures are themselves—by any rational standard—manifestly biased, unjust and unfair.

The tip of the iceberg is use of a “preponderance of evidence” standard. meaning those making accusations of sexual assault need only prove that their story has a greater than 50% chance of being accurate. This goes well beyond reducing the standard of evidence from “beyond a reasonable doubt” to “reasonable probability.” Its means that accused students are disciplined and their educational opportunities, career prospects and lives destroyed when they are almost as likely to be innocent as to be guilty. Matters go downhill from there.

One of the most egregious examples of a rigged process is that of Vanderbilt University, “where ‘fairness’ has been defined in incredibly narrow terms, for instance to allow a process where the accused student doesn’t get a hearing, where the accused student isn’t guaranteed an unbiased adjudicator.” Bias does not just impact how evidence is assessed. It can also determine what evidence is even accepted into the proceedings of college disciplinary bodies. Officials at Amherst College refused to accept as evidence transcripts of a text message conversation a student making accusations of rape had been having at the very time of the alleged rape. (She had actually spent the time asking for advice about how to seduce her roommate’s boyfriend). During the notorious Duke Lacrosse Case, 88 members of the university faculty issued a public statement saying they would disregard any judicial verdict in favor of the accused students. They also praised a group protest which had included calls for the defendants’ castration.

Not surprisingly, many falsely accused students mistreated under such “standards” have initiated court proceedings. Nearly 200 such cases have resulted in decisions in favor of the falsely accused. Over 100 other schools settled cases out of court once the writing was on the wall against them.

President Biden must either know exactly what he is doing or take no time to look at facts. Deviations from due process are grounded in a trajectory towards “guilty until proven innocent” (dignified as “start by believing”) that motivated and was propagated by innovative regulations he created during his vice presidential days. If Biden really was interested in facts and in justice he might claim a past good faith mistake. But by now the record of injustice is so clear that persistence in his path can be only grounded in inexcusable ignorance, in ideological or partisan bias, in commitment to imposing his pet policies regardless of their impact or in the belief that it is better for the innocent to be punished than for the guilty to escape justice.

It is easy to say that lawmakers, advocacy organizations, etc. should press the administration to commit to due process, or at least admit its refusal to do so. But other steps can mitigate the danger if such commitment is not forthcoming.

It would, for example, be difficult for the administration to reject a proposal for regulations requiring investigations and disciplinary decisions be made by individuals with forensic and legal training. The same goes for requiring opportunities for cross examination. A proposal that exonerating evidence be taken into account could never be explicitly opposed. Regulations effectively tolerating a “clear and convincing evidence” standard might still be able to exclude the more egregious “standards” now sometimes used. These measures, and others like them, could considerably reduce incidents of injustice, eliminate the gravest injustices and allow the resources available to victims of it to be concentrated on a small number of cases.
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