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OPINION: The Sad and Twisted State of Justice on US College Campuses

Since roughly the 1980s, certain norms on US college campuses have shifted dramatically. In cases of sexual harassment or sexual assault, the administrative default has swung from precautionary skepticism to, in a word, gullibility. Administrative policy is now being led by a contingent of activists for whom it is anathema to question the word of any self-proclaimed victim. Everyone is guilty until proven innocent.

The Duke Lacrosse case, and the ensuing humiliation of Rolling Stone, should have been enough to extinguish this line of reasoning. It wasn’t. The new norms, fed both by political will and by confirmation bias from real crimes, have prevailed. To push back, we have to go back to underlying principles.

Why Defend Defendants?

Private college campuses, like any other private entity in our society, have considerable latitude to police themselves as they see fit. Some left-wing, liberal-arts schools may have student regulations that seem like they fell out of 1793 Paris, but none of the students were forced to attend those schools. This is a matter of law; but there is also the matter of culture.

While the mandate of the US Constitution is to our Federal Government, its principles have survived the test of time because they are fundamental values for any civilized society. The Constitution protects our right to free speech and assembly and personal defense from government overreach, but the rationale for that protection is that these are bedrock necessities, and ought to be protected from all challenges.

The same is true for Amendments IV-VIII. Indeed, it is worth noting that fully half of the original Bill of Rights was devoted to protecting the defendants in criminal cases. This was not an accident; our Founding Fathers were all too aware that spurious police actions were the likely tool of choice for petty tyrants.

Why We Should Care

As De Tocqueville noted at the time, while we cannot construct a perfect system of justice, we can hope to construct a system of justice that resists being used as a political tool. One way to do that is to ensure that people are innocent until proven guilty: that the system defaults to not exercising its awesome punitive powers. College campuses would do well to study that lesson. Once your on-campus system of justice is politicized, guilt and innocence are simply a matter of who is in charge. And that can change.