What constitutes "due process" for the accused in universities' hearings dealing with campus rape?

Peter Berkowitz has published an op-ed in the Wall Street Journal denouncing a "Dear Colleague" Letter from the Department of Education's Office of Civil Rights on the procedures that universities ought to use in adjudicating student of rape and sexual assault. Peter styles the OCR's guidance document as an "illiberal" attack on due process driven by the "dogmatism" of "postmodernists, radical feminists and critical legal studies scholars" who are "institutionalizing a presumption of guilt in sexual assault cases." Peter is upset that OCR recommends that universities reduce the procedural protections for students accused of rape below those provided by the criminal justice system. In particular, Peter takes issue with OCR's recommendation that universities hold the accuser merely to a "preponderance of the evidence" standard of proof, that the accusers get the same appeal rights as the accused, and that the accused not be given rights to confront or cross-examine the accuser. According to Peter, these recommendations are rooted in Feminist orthodoxy that "men are controlling, angry and deceitful" and that "women neither lie nor make errors in alleging that they have been sexually assaulted."

But Peter cannot be serious that all of the rights appropriate for a criminal case (where the stakes are loss of life or personal liberty) ought to be imported into an administrative hearing (where the stakes are suspension or expulsion from a particular educational institution). In particular, the BARD standard of proof is almost never used in administrative hearings. Entire families are expelled from public housing based on one member's drug activities even if the rest of the family was unaware of those activities, using the usual "preponderance of evidence" standard. (See HUD's guidebook, page 204). Conditional permanent residents are routinely deported in immigration hearings under INA section 216(b)(1) based on the "preponderance of the evidence" standard.

If aliens can be kicked out the country and tenants kicked out of their apartment based on the "preponderance of evidence" standard, then it hardly horrifies me that students can be expelled from a particular university based on the same standard. Moreover, I really doubt that Peter sincerely believes that "due process" generally requires the use of criminal procedures in administrative hearings. Instead, I fear that his judgment has been distorted by the ad hominem fallacy -- namely, that "the enemy of my enemy is my friend." Based on his dislike of those "postmodernists, radical feminists and critical legal studies scholars," Peter has been led to denounce perfectly sensible proposals because of their proponents rather than their merits.

This sort of ad hominem posturing is exactly the sort of thing that makes contemporary politics so dreary. It causes even the best of us to ignore our deep principles as soon as our opponents embrace them, just to score points against people we generally dislike.

Take Peter's denunciation of the OCR's proposal, couched as a call for more protection for the accused in university "campus rape" hearings. He focuses entirely on the OCR's motives -- all that male-hating feminism -- but he says nothing substantial about the actual merits of the OCR's process. Meanwhile he ignores the one genuine flaw in OCR's proposal that is unrelated to the alleged feminist origins of the proposal -- namely, that the policy is simply too centralized.

Consider, first, the merits of the OCR proposal. Frankly, neither I nor Peter nor anyone else who has not spent a lot of time in university administration can have any worthwhile opinion about how much process is properly "due" in these sorts of university hearings on campus rape. As a conservative guy with a bit of a law-and-order streak and a daughter in college, I am not sure that Peter's call for more process in these hearings is a great idea: Maybe it is more important to assure a sense of security in a close-knit community than to insure the protection of the innocent. In any case, Peter says nothing about the managerial needs of university administrators, who are essentially landlords charged with fostering an atmosphere of trust among several thousand young and often immature tenants expected to interact in close settings with minimal supervision. Will Jarndyce v. Jarndyce-style procedural regularity lead to such delay in discipline (rustication, suspension, apologies, etc), that women feel intimidated and do not bring forward charges? This is surely an empirical question about which Peter might collect some data. Instead, he just blasts away at some alleged feminist orthodoxy.

Meanwhile, there is an enormous an obvious flaw with the OCR's proposal that Peter simply ignores: It might be that OCR is simply too centralized an institution to be defining administrative procedure for universities. In a federal system -- yes, I am harping on federalism again -- it makes sense to rely on subnational jurisdictions when contentious matters like sex and due process are on the line, unless one has reasons to believe that those subnational processes are irretrievably broken. Rather than try to proscribe some ideal level of process from Washington, D.C., OCR might instead collect data on how and why why university administrators have struck their particular balance of the rights of accused and accusers. If that data revealed some real indifference to the interests of the accusers, then perhaps an NPRM on the topic would be in order, stating why the university and state regulatory processes are believed to have failed in striking a good-faith balance. In short, OCR should not over-centralize process until they have explained why the university and state regulatory processes are incapable of taking the relevant interests into account.

Rather than denounce the OCR's one-size-fits-all bid for centralization, however, Peter instead proposes a bit of centralization of his own, proposing all sorts of criminal procedures for university "campus rape" hearings without explaining how these procedures fit with the community-fostering mission of universities. Why does Peter ignore the issue of over-centralization and instead adopt the mantle of an ACLU lawyer with an idée fixe about hyper-proceduralization? He'll have to speak for himself, but I suspect his decision was rooted in a desire to strike directly at those post-modern, feminist proponents of critical legal studies. After all, my preferred policy of decentralization is an admission that there is room for reasonable disagreement about how to run a university. That's not the sort of clarion call that can rouse the blood against an enemy. Indeed, decentralization may let those dastardly post-modern feminists win some victories on some campuses where they have strong support.

The prospect of those victories does not disturb me, because I believe that our federal system -- which includes our system of decentralized non-profit corporations called universities -- has robust procedures for give-and-take that will ultimately insure a balanced answer to a difficult question. But, in our hyper-polarized age, the bland and apparently indecisive position of the committed federalist is not a winner on any red-blooded op-ed page. Thus, we get instead a call for more criminal protections for the accused that goes beyond the wildest dreams of the ACLU. One might think that such calls for more criminal procedure fit oddly on the pages of the Wall Street Journal from a fellow at the Hoover Institute. Fueled by Oleanna-style anxieties about political correctness, however, writers can say the funniest things. Our age of ad hominem politics makes for strange bedfellows -- a natural consequence of thinking that the enemy of one's enemy is one's friend.