Even Justice Ginsburg Thinks Colleges Handle Misconduct Allegations Unfairly

Kevin Daley | Supreme Court Reporter

Justice Ruth Bader Ginsburg said colleges and universities have not respected the due process rights of the accused when resolving allegations of sexual misconduct during public remarks earlier this week.

A feminist icon and patroness of the #MeToo movement, the justice expressed sympathy with widely-held perceptions about systemic injustice in college rape tribunals.

Ginsburg told The Atlantic’s Jeffrey Rosen that women should never be afraid to complain about disparate treatment, but added that the accused must be handled fairly. She then noted that campus administrators often fail to abide by these tenets when adjudicating assault or harassment allegations.

“There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing,” Ginsburg said.

Rosen then asked if she believes these criticisms are valid.

“Do I think they are? Yes,” the justice replied.

“We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally,” she added.

In Sept. 2017, The Atlantic ran a three-part series on campus sexual assault by Emily Yoffe. The trilogy suggests that the balance of power in many campus assault investigations is seriously asymmetrical, impeding those unfairly accused — particularly men of color. These processes, she suggests, are encouraged by purposefully vague federal guidelines promulgated during President Barack Obama’s tenure, and highly dubious scientific assertions.

Education Secretary Betsy DeVos has expressed sentiments tracking Ginsburg’s, and repealed portions of Obama-era Title IX guidance believed to encourage inequitable procedural practices in higher education.

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