April 26, 2024 - 10:00am

In 2015, student-athlete Grant Neal was expelled by Colorado State University Pueblo for raping a fellow student. There was just one problem: the alleged victim repeatedly said, “I’m fine and I wasn’t raped.”

“One day I woke up and I had all my dreams in front of me,” Neal told Reason, “[but that was] yanked away from me for no justifiable reason.”

The hundreds of horror stories like Neal’s are what prompted the Donald Trump administration to institute a series of reforms in 2020, intended to protect due process rights for accused students in campus sexual assault proceedings while ensuring victims were able to pursue justice. But the Joe Biden administration has just announced plans to roll back many of these protections — prompting widespread concern over due process rights and whether mob justice might make a comeback on campus.

On 19 April, the Department of Education unveiled significant changes to the existing rules which govern these proceedings, formally taking effect at the beginning of August. These changes include removing the right of accused students to a live hearing where they can have a representative cross-examine their accuser, as well as allowing colleges to return to a “single investigator” model, where one individual can investigate the case and render a conclusion. In other words: be prosecutor, judge, and jury all at once.

The changes would require most colleges to return to using a “preponderance of the evidence” standard to decide these matters, which only needs 51% certainty of guilt to find a student responsible. Another development would be the removal of the requirement that colleges present the charges against accused students in writing at the beginning of an investigation.

The White House has argued that these changes are intended to “protect all students and employees from all sex discrimination prohibited under Title IX […] by restoring and strengthening full protection from sexual violence and other sex-based harassment”.

Now, anyone with a moral compass would surely want to ensure that genuine victims of sexual abuse are treated with dignity and receive the justice they deserve. But the spectre of expulsions without a live hearing under such a low standard of proof is raising serious concerns among legal experts and civil libertarians.

“Today’s regulations mean one thing: America’s college students are less likely to receive justice if they find themselves in a Title IX proceeding,” the nonpartisan Foundation for Individual Rights and Expression (FIRE) said in a statement after Biden unveiled the new rules. “Rather than playing political ping-pong with student rights, the Department of Education should recognize that removing procedural protections for students is the exact opposite of fairness.” (Disclosure: I do a small amount of freelance work with FIRE).

In particular, the return to the “single investigator” model is raising concerns. “You arrive at truth by asking hard questions,” attorney Justin Dillon, who represents students accused of misconduct, told The Free Press. “But single investigators have no incentive to do that, which is why they are the worst possible model if you want to get to the truth. This is going to lead to more erroneous outcomes, and more lawsuits.”

Professor K.C. Johnson has studied the debate for years, and he worries that, in totality, Biden’s changes may return us to a time when “young men — the accused were almost always young men, of course — were sometimes expelled from campus without ever seeing the charge against them in writing, or hearing testimony against them.” When so many experienced legal minds express concerns, it is hard to deny that Biden may just be bringing back the witch hunts which characterised the #MeToo era.

Brad Polumbo is an independent journalist, YouTuber, and host of the DAMAGE CONTROL podcast dedicated to reclaiming common sense on LGBT issues.