RUTHFULLY YOURS

It’s Betsy DeVos day here at NR. I’ve got a piece up on the homepage detailing how critics of campus due process rely on junk science and sometimes even sheer malice to prop up failed Obama-era policies, and our editors have expressed their own support for reforming campus Title IX prosecutions. But as you read these pieces and weigh them against the #StopBetsy invective across the web, consider one more thing — state and federal courts are making change inevitable. Universities are losing due process cases from coast to coast.

I’d urge you to read my friend KC Johnson’s excellent, extended piece over at Commentary. It begins:

In late August, U.S. District Judge Michael Barrett blocked Miami University from suspending a student the school had found guilty of sexual assault. The student claimed that his due-process rights had been violated by Miami University’s fact-finding process. This process had featured a proceeding in which all the witnesses corroborating the accuser’s claims had refused to appear—and at its conclusion the chair of Miami’s disciplinary panel simply accepted their unverified statements as “true.” When the case reached federal court, university lawyers argued that cross-examination of the absent witnesses was irrelevant because the accused student was allowed to say that he disagreed with their claims. The university, Barrett responded, misunderstood the importance of cross-examination for assessing witness credibility. Miami’s “claim that no amount of cross-examination could have changed the minds of the hearing panel members,” the judge concluded, “arguably undercuts the fairness of the hearing.” The “arguably” was a nice touch.

Barrett’s decision marked the 59th judicial setback for a college or university since 2013 in a due-process lawsuit brought by a student accused of sexual assault. (In four additional cases, the school settled a lawsuit before any judicial decision occurred.) This body of law serves as a towering rebuke to the Obama administration’s reinterpretation of Title IX, the 1972 law barring sex discrimination in schools that receive federal funding.

Obama administration activists and campus ideologues have imposed procedures that revolt judges across the ideological spectrum. Change isn’t optional. It’s mandatory. Federal government policies are driving universities to violate the civil liberties of their students, and it’s legally unsustainable. Here’s Johnson again:

The process began in May 2013, in a ruling against St. Joseph’s University, and has lately accelerated (15 rulings in 2016 and 21 thus far in 2017). Of the 40 setbacks for colleges in federal court, 14 came from judges nominated by Barack Obama, 11 from Clinton nominees, and nine from selections of George W. Bush. Brown University has been on the losing side of three decisions; Duke, Cornell, and Penn State, two each.

As Johnson notes, the universities don’t always lose, but even when they prevail, they often prevail in the face of deep judicial misgivings about university processes. Moreover, these cases are brought against the backdrop of a very particular judicial bias. As a litigator who’s sued a number of universities on constitutional grounds, I can tell you that federal judges do not want their courts to become glorified student disciplinary boards. Yet the facts are often so egregious — and the constitutional violations so plain — that they often have no choice.

So the next time a campus ideologue says reformers are on the side of “rapists,” remember that their preferred procedures are too radical even for President Obama’s judges. One way or another, their kangaroo courts will come to an end.

Yesterday, Secretary of Education Betsy DeVos took a welcome step toward restoring a measure of justice and sanity to American higher education. In a speech at George Mason University — and in a follow-up interview with CBS News — DeVos indicated that she intended to withdraw Obama administration “guidance” on adjudicating sexual-assault claims on campus and replace it with a regulatory rulemaking process that is intended to protect students from sexual assault and preserve essential civil liberties.

It’s hard to overstate the legal and moral necessity of this action. First, let’s deal with the law. In 2011, the Obama administration issued a now-infamous “Dear Colleague” letter that required universities to lower the burden of proof in sexual-assault adjudication to a “preponderance of the evidence” standard (50.1 percent probability) without also adequately preserving essential due-process rights such as access to counsel, access to available evidence, and full and fair cross-examination of witnesses. At the same time, the administration commenced dozens of open-ended investigations of universities — acting on claims that they were insufficiently committed to protecting women from rape and applying the new guidance to evaluate university policies.

These actions were fundamentally lawless. No American administration has the ability to rewrite the law by merely issuing a letter. At the very least, the Obama administration should have conducted a notice-and-comment regulatory rulemaking process in accordance with the Administrative Procedure Act. Even then, the regulation would still have to be consistent with governing federal statutes and comply with the Constitution. But Obama’s Department of Education ignored these steps and instead violated the APA, Title IX, and the Constitution in an ideologically motivated trifecta of campus tyranny.

The result was entirely predictable. Campuses, fearing the loss of federal funds and pushed by their own internal constituencies who pushed ludicrous and discredited claims that up to one in five female students would be sexually assaulted during college, created a vast, morally outrageous, and oppressive system of kangaroo courts. According to a study released this week by the Foundation for Individual Rights in Education, 73.6 percent of America’s top universities don’t guarantee students a presumption of innocence, fewer than half require that fact-finders be impartial, and a full 58.5 percent of institutions don’t “provide students with a meaningful opportunity to cross-examine witnesses” in cases of sexual misconduct. And this is a partial list of university legal failures. All told, 45 of the 53 rated colleges received a “D” or “F” for their commitment to due process.

But those are dry statistics. The individual stories are harrowing, and DeVos provided startling examples in her speech. Schools have punished students even though the alleged “victim” claimed that nothing happened. They’ve investigated and punished professors and students for engaging in First Amendment–protected speech. They’ve refused to allow students to introduce exculpatory evidence. And they’re facing an avalanche of lawsuits from aggrieved students as a result. Brooklyn College professor K. C. Johnson has compiled a list of at least 60 university litigation defeats since the Obama administration issued its “Dear Colleague” letter, and the list often expands by the week.

Schools have been caught between the hammer of an overzealous and lawless Department of Education and the anvil of private litigation. Their choice? Follow the Constitution and potentially lose government funding. Comply with Obama-administration directives and potentially face the wrath of a federal judge.

Over the past week, two major US institutions have produced studies that discredit their names and reputations as credible organizations. Their actions are important in and of themselves. But they also point to a disturbing trend in the US in which the credibility of important American institutions is being undermined from within by their members who pursue narrow partisan or ideological agendas in the name of their institutions.

The political implications of this larger trend were clearly in evidence in the 2016 presidential election. From a larger, long-term sociological perspective, if the current trend is not reversed the implications for American society will likely be long lasting and deeply destructive.

The first study was produced by the US Holocaust Memorial Museum. It dealt with the Obama administration’s policies regarding the war in Syria and specifically the acts of mass murder undertaken by the Assad regime. Authored by Cameron Hudson, a former Obama administration national security official who now serves as the director of the museum’s Simon-Skjodt Center for the Prevention of Genocide, the report absolved the Obama administration of all responsibility of the bloodbath in Syria.

As reported by Tablet magazine, the paper argued that “a variety of factors, which were more or less fixed, made it very difficult from the beginning for the US government to take effective action to prevent atrocities in Syria.”

The paper’s claim was based on “computational modeling and game theory methods, as well as interviews with experts and policy-makers.” It argued that had then-president Barack Obama not ignored his own redline and actually responded with force to the regime’s 2013 chemical weapons attack at Ghouta, it wouldn’t have made a difference.

In the last months of the Obama administration, Obama appointed several of his loyalists, including his deputy national security adviser Ben Rhodes, to positions on the board of the Holocaust Memorial Museum. Rhodes was one of the architects of Obama’s Syria policy.

After sections of the report were released to Tablet and the report was posted on the museum’s website, its findings were angrily rejected by prominent Jewish communal leaders and human rights activists.

For instance, literary critic Leon Wieseltier told Tablet, “The first thing I have to say is: Shame on the Holocaust Museum.”

He added, “If I had the time I would gin up a parody version of this that will give us the computational- modeling algorithmic counterfactual analysis of [then-US assistant secretary of war] John J. McCloy’s decision not to bomb the Auschwitz ovens in 1944. I’m sure we could concoct the f***ing algorithm for that, too.”

Wieseltier was exactly right. A mathematical model is based on inputs and outputs. If you input specific data, you will get specific consequences. From an academic perspective, the study’s findings are worthless.

In the wake of the firestorm the report provoked, the museum pulled the study from its website and canceled its scheduled formal presentation on September 11.

But the damage that the Holocaust Memorial Museum did to its reputation by producing and publishing a transparently false, politically motivated report is not something that can be mitigated by pulling it from its website.

As some of the Jewish communal leaders, who spoke to Tablet suggested, the Holocaust Memorial Museum diminished its moral authority as an institution by publishing a report clearly produced to rewrite recent history in a manner that absolved the Obama administration of all responsibility for the mass murder in Syria.

While distressing, the impact of the Holocaust Memorial Museum’s action is limited to a historical falsehood. The goal of the second study published this week by an esteemed institution is to distort and indeed block discussion about a problem that is ongoing.

This week, Stanford University’s Research Group in Education and Jewish Studies published a report which purports to show that there is no significant antisemitism on US college campuses and that Jewish students do not feel threatened by antisemitism.

The Stanford’s conclusions fly in the face of a massive body of data, collected by researchers over the past decade, which all show the opposite to be the case. If the Stanford study is believed, it will discredit the work of hundreds of professional researchers and academics, journalists and Jewish and academic leaders throughout the US.

But that’s the thing of it. The Stanford study is utter nonsense.