Are Kangaroo Courts Coming to Your Campus?

Gregory Burr
October 1, 2012

On college campuses across the United States, it is not uncommon for concerns to be meticulously observed through a lens tinged with the issues of race, class, and gender. Freedom fighters have marched, fundraised, knocked on doors, and campaigned for equality. No matter the cause, young people have consistently found themselves at the front of the fight to tear down institutionalized prejudice and oppression. The world is better for it, but when the rebel freedom fighters of old become the architects of a new institutionalized prejudice and oppression, it is the duty of the young to rise up in dissent. Young people on college campuses across the country should be rising up against the prejudice and blatant violation of civil liberties found in the policies recommended in this The Department of Education’s April 2011 Dear Colleague Letter on Title IX.

Most college students are probably familiar with Title IX because of the role it plays in college sports. Title IX is meant to guarantee that no school receiving federal funds discriminates on the basis of sex. It simply says:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…

On the surface it appears that no honest person could claim that Title IX is the instrument of institutionalized oppression and the blatant destruction of civil rights, but the policies put forward in the letter amount to a complete destruction of due process for student defendants accused of rape or sexual harassment.

The Dear Colleague letter released on April 4th, 2011 by the Department of Education Office of Civil Rights lays down policy requirements for schools when dealing with accusations of sexual harassment, sexual violence, or rape. Three specific policy requirements are particularly detrimental to civil rights. First, the letter “strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” The right to face your accuser traces its origins to English Common Law and is codified for criminal proceedings in the Sixth Amendment of the United States Constitution. In a quasi-criminal proceeding in which the accused can be labeled a rapist in their college transcripts, expelled from university, and blacklisted from attending other universities or gaining employment, is it not reasonable to expect this most basic level of protection?

The Department of Education answers with a resounding “no.” Second, the letter says “if a school provides for an appeal of the findings or remedy, it must do so for both parties.” On the surface this does not appear all that harmful, but one needs only to think for a moment to realize that this policy ensures that if there is to be a way for the defendant to appeal, that same process also ensures that he must face what in criminal courts is called “double jeopardy.” The policy turns the appeals process on its head by becoming a tool of repeated prosecution instead of a way to protect the defendant against errors in the process that led to an innocent person being found guilty. Finally, the letter states “in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e. it is more likely than not that sexual harassment or violence occurred).” The phrase “innocent until proven guilty” no longer has any meaning on college campuses, and in its place schools are forced to use the lowest possible standard of evidence.

These policy requirements are in direct opposition to the legal protections found in the United States Constitution, and since a rape is an incredibly serious matter in which colleges enact quasi-legal proceedings and punishment it is entirely inappropriate for due process to be eroded in the name of easier victories for the accusers. Victories for the accusers may come, but at what cost to innocent men who have been falsely accused and wrongfully convicted by these shameful policies? What happens when a girl has a few drinks at a party, hops in bed with some guy, has consensual sex, and then makes an accusation the next day after she comes to regret her actions from the night before? Will people of integrity stand by as this false accusation is heard by a kangaroo court completely ill-equipped for the seriousness of the proceeding?

These claims may seem like far off worries to which one should give little attention, but the consequences for doing so are great. Already students like Caleb Warner have faced overzealous prosecution based on false accusations and supported by poor policy. Thanks to the help of the Foundation for Individual Rights in Education, Caleb was successful in securing an appeal for his case and was exonerated after presenting evidence that the police had conducted their own investigation. In fact, local authorities have issued a warrant for the arrest of Caleb’s accuser on charges of making a false report to law enforcement. When Caleb’s accuser is finally arrested, she will be put on trial in a criminal court where the standard of proof is “beyond a reasonable doubt.” It is a shame that Caleb didn’t receive that same treatment in the first place. Rape is an atrocious offense and should be handled in criminal courts with serious evidence so as to prevent incidents like this one from happening. Civil liberties groups are fighting back, and FIRE is leading the charge. We should be standing up for rape victims on campus, but that should not involve destroying due process for the accused.