‘Prosecutor, Judge, And Jury’: Why Campus Kangaroo Courts Should Lose Federal Funding

As the Department of Education yanks $175 million of federal funding from the University of Pennsylvania for violating Title IX by allowing males into women’s sports, Secretary Linda McMahon should also consider cracking down on other, more common procedural violations of Title IX that have been routinely committed by colleges for over a decade: that is, violations against due process for students and faculty accused of sexual misconduct.

This status quo was created by the Obama Department of Education’s 2011 “Dear Colleague” letter, which gutted protections for the accused in the name of “victims’ rights,” under penalty of losing federal funding. The letter mandated that colleges use the “preponderance of evidence” standard — which only demands that the guilty be deemed over 50% likely to have committed misconduct — as opposed to the stronger “guilt beyond a reasonable doubt” standard employed in criminal trials in actual courts. It also allowed alleged victims to appeal the result of a disciplinary hearing — a form of double jeopardy otherwise barred by the legal system. Moreover, it discouraged cross-examination of victims, claiming this would “retraumatize” them, and enabled a single-investigator model, in which the person investigating the sexual misconduct claim would also adjudicate the sexual misconduct claim and decide as to whether or not the accused was guilty — giving the investigator the near absolute power to be “prosecutor, judge, and jury” at once, as the Foundation for Individual Rights and Education called it.