Philadelphia‐based FIRE is nonpartisan and has defended students and faculty members on the left and right. FIRE has made common cause with politically diverse organizations ranging from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers to the Heritage Foundation, Young Americans for Liberty and the Cato Institute.
Mrs. DeVos has entered the political thicket that civil libertarians often encounter, wherein one is saddled with the actions of the accused rather than credited with advocating for fair procedures. As a criminal‐defense and civil‐liberties trial lawyer who has represented defendants ranging from student radicals to alleged child molesters, I can vouch for the virulence of guilt‐by‐association.
Higher education is currently embroiled in a contentious battle over campus sexual assault. The Obama administration and certain nonprofits, including the AAUW, want to make it easier for campus disciplinary tribunals to credit the complaints of alleged victims and to punish the accused, frequently by expulsion.
The Education Department has instructed universities to adjudicate claims of sexual misconduct using the low “preponderance of the evidence” standard, in which the mere 50.1% likelihood of guilt is sufficient. FIRE argues that a higher standard may be necessary—particularly given that campus judicial systems typically lack many if not most of the procedural protections available to defendants facing criminal charges, or even civil liability, in a court of law.
Lest anybody doubt the problem caused by the absence of due process, a quick scan of the landscape produces myriad examples. A Brandeis student sued the university after it found him guilty—without a hearing—of sexual misconduct for, among other things, staring at his then-boyfriend’s body while the two shared a bathroom. Judge Dennis Saylor, in a decision allowing the lawsuit to move forward, noted that Brandeis’s “inquisitorial” process “appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.”
Civil‐liberties advocates have long defended free speech and fair procedures. Often that means standing up for the rights of people who hold odious views or have committed grave crimes, including sexual assault. Those whose views are merely unpopular, and the innocent who are wrongly accused, depend on the same protections.
If confirmed, Mrs. DeVos will have the opportunity to improve the climate for fairness and accuracy in campus judiciaries at universities that have obliterated due process for fear of losing millions in federal aid—to make American higher education free and fair again.