ADAM CANDEUB

March 29, 2018

Thanks to the Trump administration, the Department of Education has rescinded and will replace the much-criticized Obama-era Title IX sexual assault guidelines. Under these guidelines, college and universities faced the threat of the loss of government funding unless they created tribunals to punish criminal sexual assault. These Obama-era guidelines required that these tribunals abandon the protections that American enjoy when accused of criminal acts, including the rights to effective counsel, cross-examination of witnesses, object to false or prejudicial evidence, and proof beyond a reasonable doubt.

Americans who support due process and free speech have much for which to thank the Department of Education’s rescission, as well as the growing number of federal judges declaring these campus tribunals’ procedures unconstitutional.

But, we must gird our loins for yet another onslaught: the reauthorization of the Campus SAVE Act, which was enacted into law as part of the Violence Against Women Act (VAWA) in 2013. The reauthorization gives Congress the chance to reintroduce aspects of the now-rejected Obama-era guidelines back into campus tribunals. Instead, those who care about campus rights must insist on strong due process protections.

The 14 principles for Violence Against Women Act reform are a good place to start. These principles, signed by over 75 scholars and attorneys, emphasize counseling, training and science-based approaches to campus responses to sexual assault.

It might seem strange that Congress would need to require the Title IX campus bureaucracies to employ constitutionally sound procedures. Too many such employees subscribe to various “victim-centered” pseudo-sciences, such as so-called “trauma neurobiology.” Relying on this quackery, many claim that Title IX sexual assault tribunals need not bother with standard legal fact finding.

In addition, the 14 principles demand that sexual assault tribunals respect due process and the presumption of innocence. Investigations of alleged incidents must be objective, neutral, and fair, not based on guilt-presuming “victim-centered” methods. And, those who make false allegations need to be held accountable.

Experience shows that because Title IX sexual assault tribunals too often abuse their authority, students need constitutional protections. Sadly, the courts are filled with cases of campus Title IX bureaucrats presiding over kangaroo courts. They deprive the accused of the ability to respond to incriminating evidence, impose impossible-to-prove standards to show “affirmative” consent in sexual relations, and engage in blatant impartiality.

Moreover, the offices they invent to administer these policies are often utterly incompetent. It pains me to write this, but my own institution, Michigan State University, demonstrates the incompetence of the Title IX sexual assault bureaucracies.

As the national news has covered, over a hundred women have filed suit against Dr. Larry Nassar and Michigan State, an osteopath attached to the U.S. Olympic team and associate professor in MSU’s College of Osteopathic Medicine, for sexual assault committed during medical treatments.

Tragically, Michigan State University Title IX officials turned a blind eye to Nassar. In the most glaring example, a graduate student in 2014 brought a complaint to Kristine Moore, who was then Assistant Director for Institutional Equity. The victim alleged that during her appointment, Nassar massaged her vagina and breasts under her underwear, without her consent, while in a state of sexual arousal.

In clearing Nassar, Moore sought out medical experts and, in a stunning act of professional incompetence, reportedly asked Nassar for references to evaluate the necessity of his “procedures.” Nassar recommended his friend, Dr. Brooke Lemmon, who supported Nassar’s claims. Relying on Lemmon, Moore explained to the victim in dismissing her complaint that she simply had failed to grasp the “nuanced difference” between osteopathic treatment and sexual assault.

Rather than face any consequences for her incompetent inquisition, Kristine Moore is now MSU’s assistant general counsel. According to published reports, Nassar allegedly committed 20 more assaults subsequent to Moore’s vindication.

The VAWA reauthorization cannot become an opportunity to further empower the Title IX bureaucracies.

The last few years have demonstrated their incompetence, their contempt for constitutional protections and basic fairness, and, indeed, the danger they pose to students. If Congress choses to mandate procedures for the Title IX bureaucracies, those procedures must respect due process and rule of law. These principles have served us well for centuries—there is no reason to give them up now.

Adam Candeub is a professor and the director of the intellectual property, information & communications law program at Michigan State University College of Law.