Colleges and universities are increasingly looking to outside judges to help adjudicate accusations of campus sexual assault.
Under pressure from the Obama administration, schools in recent years have been adjudicating accusations of sexual assault. The results have been a disaster.
First, accusers insisted that the process was rigged against them, and that facing the accused was too traumatic. So the Department of Education mandated the "preponderance of evidence" standard and "strongly discouraged" schools from allowing cross-examination. It also provided no due process rights to accused students.
This, along with threats of lost funding, encouraged schools to expel more accused students based on nothing more than accusations. Accused and expelled students began fighting back. But they didn't get the support and media attention accusers enjoyed.
Still, schools have begun to realize that severely altering a student's future — by labeling him a "rapist" for life and hampering his future potential earnings — might need more than a "better safe than sorry" conclusion reached without due process.
"But that's beginning to change at some colleges, where outside judges — typically retired state judges — are being hired to oversee hearings," wrote Inside Higher Ed's Jake New. "The hearings are still held under college rules, not state rules for courts."
I welcome any attempt to make the hearings and investigations more fair. Outside adjudicators are a good start, as they are less likely to think of only the college's interest. Given the current culture surrounding sexual assault, it's in a college's best interest to expel regardless of the evidence. Although, if the outside adjudicators are being paid by the university, that could compromise their integrity.
Of course, those who prefer to expel students based solely on the unsworn word of an accuser oppose outside adjudicators. Their main concern seems to be that a process that is too much like the criminal justice system (i.e., too fair and thorough) won't result in more expulsions.
"Generally I don't think judges are a good idea, as it makes the process more legalistic and held to higher standards in terms of later legal challenges," said Brett Sokolow, who has been advising colleges across the country on how to adjudicate sexual assault.
This is the same Sokolow who acknowledged last year that sometimes people think they're victims when they're really not. Knowing that, how can he advocate against a legitimate investigation?
The answer is simple: It's a safer position to believe accusers no matter what than to suggest they might not have been raped. Until schools, the media and Congress are brave enough to accept that, we will continue to see more lawsuits filed and more lives shattered.