What Does Due Process Mean and How Should It Work?

            The topic of discussion for this Constitution Monday pertains to the constitutional right to due process of law. The due process of law clause is found in both the Fifth Amendment and in Section 1 of the Fourteenth Amendment. The wording of the two amendments is as follows.

[Fifth Amendment:] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprive of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 

[Fourteenth Amendment, Section 1:] No persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

            The due process of law is contained in two amendments to the Constitution of the United States. Yet, the Biden administration is preparing to strip the due process of law protections from college students, according to a New York Times article titled “Biden Will Revisit Trump Rules on Campus Sexual Assault.” A subheading says, “The Biden administration will examine regulations by Betsy DeVos that gave the force of law to rules that granted more due-process rights to students accused of sexual assault.” In an article at The Daily Signal, David Harsanyi explains part of the problem concerning this review by the Biden administration. 

The most disingenuous word here – though the piece is brimming with them – is “more.” History did not begin in 2015, and former education secretary Betsy DeVos did not invent more due process rights in Title IX; she simply reinstated time-honored fundamental due process rights that have guided justice systems in the liberal world for hundreds of years. The Constitution says – twice – that no citizen shall be arbitrarily “deprived of life, liberty or property without due process of law. No means no.

It was only in 2011 that the Obama administration instituted fewer due process rights through the force of law, denying the accused the ability to question accusers, the right to review the allegations and evidence presented by their accuser, the right to present exculpatory evidence, and the right to call witnesses. Basically, the right to mount a defense.

It was the Obama administration that asked schools to institute a system that empowered a single investigator, often without any training and susceptible to the vagaries of societal and political pressures, to pass unilateral judgment on these cases. Also, under the Obama administration rules, colleges were allowed to adjudicate sexual abuse and assault cases using a “preponderance of evidence” rather than a more stringent “clear and convincing evidence” standard.

            As explained by Harsanyi, no one is arguing that accusers do not have the right to come forward with their accusations or that anyone should have fewer rights than other victims of crimes. The pains and anguish of the victims should be acknowledged. However, “the presumption of innocence is a legal term based on a values system.” The federal government has no right to dictate to colleges that they should deal with their students differently than outlined in the Constitution. The accuser and the accused should be dealt with according to the Constitution.

The good news is that between 2011 and 2021, there has been a string of court cases repudiating Biden’s position. Hundreds of lawsuits were filed since 2011. A 2015 study by United Educators found that a quarter of the Title IX statute had been challenged by students who either filed lawsuits in the federal courts or lodged complaints through the Department of Education’s Office for Civil Rights. Dozens of schools, including Northwestern University, Dartmouth College and Yale, settled cases, while schools such as USC, Pennsylvania State University, Ohio University, Hofstra, Boston College and Claremont McKenna all lost decisions.

Schools complained about the costs of implementing due process, yet the average cost of settling these claims was around $350,000, with some going as high as $1 million.

This, not incidentally, also means that some people who are guilty of sexual assault will claim to be victims of flawed hearings or unfair sanctions simply because they can circumvent the norms of justice. Proper due process protects both the accuser and the accused. At the very least, the state should ensure that students are afforded the same impartiality, norms and protections that every one of us expects in the real world.

            The bottom line is that the Constitution was written to protect every American. The accused as well as the accuser should be treated fairly – male or female, rich or poor, famous or not. The law should apply fairly to everyone, and students do not give up their right to due process of the law when they enroll in college.