Guilty until proven innocent: Lhamon and Biden undermine due process for college students

The Biden administration is in the process of reversing the elementary due process protections that Betsy DeVos spent the lion’s share of her time as Education secretary attempting to restore. The move is a profound embarrassment to the United States, and represents a blow to the core principles of justice that Americans have for centuries fought to defend.

Unlike the Obama administration, which effected its execrable reforms in 2011 by unilaterally issuing a “Dear Colleague” letter, the changes made by Secretary DeVos were extremely carefully crafted. The process took 2 1/2 years from start to finish; it included the consideration of more than 124,000 public comments; and it involved the alteration of the final product to incorporate objections that they raised.

DeVos' rules reflect American values

Most important of all, Secretary DeVos’ modifications were not a departure from but a restoration of elementary American values. Per the Foundation for Individual Rights in Education, the alterations DeVos shepherded through included a reclamation of “the rights to a live hearing to contest charges, to an express presumption of innocence, to meaningful cross-examination, and to access to all of the evidence in an institution’s possession, including exculpatory evidence.”

In addition, colleges were obliged to adopt a “clear and convincing” standard of guilt, and to ensure that the adjudicator and the investigator in a given case could not be the same person. The rules stopped a little short of those that would obtain in a court – unlike in a criminal trial, for example, the cross-examination provision does not require the accuser to be present – but they were a marked improvement, and they reintroduced into college-based proceedings a set of basic liberal values that have been a part of the American system since we were a twinkle in George Washington’s eye.

Discussing these changes as a presidential candidate, Joe Biden liked to channel his inner Archie Bunker. By moving to protect due process on college campuses, Biden said, the federal government had given the “green light to ignore sexual violence and strip survivors of their rights.”

This, naturally, is a disgracefully illiberal way of describing basic protections for the accused – akin to the idea that to insist upon a fair trial for an alleged murderer is to be "soft on crime."

Alas, such talk is par for the course for Biden, who has made it clear for years now that he does not believe in the rigorous investigation of charges of sexual assault – unless, of course, those charges are made against him. Speaking in 2016, Biden argued that no woman who accuses a man of sexual assault should be expected to answer detailed questions about her allegations of the sort that any accuser of any other crime would be expected to answer: Questions such as “What did you say?” or “Were you drinking?” “No one,” Biden concluded, “particularly a court of law, has a right to ask any of those questions.”

Will someone, please, send the man an unabridged copy of "To Kill a Mockingbird"?

While running for president last year, Biden got more specific, insisting that “survivors deserve to be treated with dignity and respect, and when they step forward they should be heard, not silenced.” “As president,” Biden promised, “I’ll be right where I always have been throughout my career – on the side of survivors."

Taken together, these statements are both jaw-droppingly authoritarian and entirely nonresponsive. Nobody involved in this debate is opposed to treating the survivors of sexual assault with “dignity and respect” – nor, for that matter, to extending dignity and respect to anyone who has merely alleged sexual assault. Rather, they are opposed to reflexively labeling accusers as “survivors” and to declaring ahead of time that the government is “on their side.”

Why? Well, because to assume as a matter of course that an accuser is a “survivor” is to assume as a matter of course that the accused must be guilty. When Biden says accusers “should be heard, not silenced,” what he means in effect is that the accused should be heard less. There is nothing – nothing – in the new Title IX rules that “silences” a person coming forward with a claim; there is a lot in those rules that gives the accused a chance to defend themselves. That Biden considers this to be an affront to the rights of the accuser suggests he does not care much about the truth.

Dillon and Taylor Jr.: Ending due process: Reinstating Catherine Lhamon at the Dept. of Education is a mistake

Those who wonder how serious President Biden really is about this project should consider that he is trying to restore one of the Obama-era officials who was responsible for enforcing the famous 2011 “Dear Colleague” letter to the same role as she held before. At a recent Senate hearing, convened to consider her nomination to the Department of Education, that official, Catherine Lhamon, made it clear that she has not changed her mind at all since then – and, worse, that she still believes that the due process protections that were restored in 2020 have made it “permissible to rape and sexually harass students with impunity.”

Under questioning, Lhamon declined to alter her previously held positions on the lack of need for hearings and cross-examination or on the desirability of the single-investigator model, and she confirmed that America's traditional approach to presumption of innocence is not relevant to college-based adjudications. Evidently, despite the host of successful lawsuits and settlements that have been the result of Lhamon's policies, she hasn't learned a thing.

College students have rights, too

Sexual assault is among the most serious crimes on our statute books, and those who commit it should be punished legally and socially to the fullest extent of the law. And yet it is precisely because the crime is so serious that we should expect our institutions to determine faithfully who is guilty of it and who is not. Sometimes, people lie – yes, including with false allegations of sexual assault. And, because the number of people who lie is not zero, there is simply no way of prejudging or pre-tilting cases without guaranteeing that innocent people will have their lives ruined. Pushing back against the idea that schools should be as rigorous and fair as possible, Terry Hartle, the senior vice president of Government Relations and Public Affairs at the American Council on Education, told NPR that universities are “not judicial bodies” and that, as a result, “campus officials (are) not trained to navigate these sort of quasi-legal disputes.”

If that’s the case, one would expect to see figures such as Biden, Lhamon and Hartle come to the opposite conclusion than they do. In no other circumstance does “we aren’t qualified” serve as an excuse to adopt a set of draconian and illiberal rules that the people who are qualified wouldn’t touch. If, as they insist, colleges are unable to participate in this area, the appropriate response would be to decline to do so.

Sexual assault: We're closing in at last on fixing how military handles sexual assault: Gillibrand & Speier

In seeking to nix DeVos’ reforms, the Biden administration is making a pro-active choice to make things worse. And make no mistake: It is a choice. Biden’s move is not required by the courts or by the Constitution (indeed, if recent cases are an indication, the opposite may be true); it is not mandated by the text of Title IX; and there is no majority clamoring for renovation.

By his own lights, and under his own steam, President Biden is trying to resuscitate a system that the late Justice Ruth Bader Ginsburg criticized as “some college codes ... not giving the accused person a fair opportunity to be heard”; that, as Justice Amy Coney Barrett noted in a recent majority opinion for the 7th Circuit, often falls “short of what even a high school must provide to a student facing a days-long suspension”; and that, because of the particular threat it poses to African American men, may well end up undoing a good deal of the work against “systemic racism” in which Joe Biden claims to be engaged.

During the Trump years, we heard daily about the importance of “norms.” We are about to find out whether that was all just idle talk.

Charles C.W. Cooke (@charlescwcooke) is a senior writer for National Review.

You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to letters@usatoday.com.

This article originally appeared on USA TODAY: Biden's attack on due process violates core American principles