Soviet Show Trials come to American college campuses

Modern-day historians look back at the Soviet criminal system with a mixture of sorrow and disbelief.  For example, Lavrentiy Beria, head of Stalin's secret police, often boasted, "Show me the man, and I'll show you the crime."  Beria was bragging that he possessed a fearsome array of tools that could banish any political opponent to the gulag.  An accusation became the legal equivalent of a conviction.

Decades later, a similar philosophy began to take hold on college campuses across the United States.  For example, a lawsuit against Oberlin College in Ohio revealed that every male accused of a sexual peccadillo at that school was found responsible of the alleged offense.

These "kangaroo courts" were shut down in 2020, when a new due process regulation took effect, thanks to the intrepid efforts of former Department of Education Secretary Betsy DeVos.  The regulation featured a variety of commonsense due process procedures such as impartial investigations, cross-examination, and the presumption of innocence.

But no surprise, presidential candidate Joe Biden vowed to put a "quick end" to the DeVos rule.  That "quick end" happened yesterday, when the Department of Education released its draft Title IX regulation.

Since the Title IX law is designed to curb sex discrimination, heated debates had arisen about reworking the foundational word, "sex."  In the draft regulation, the Biden administration settled on "sex" being expanded to include "sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity."

The "gender identity" part of the new definition is especially worrisome, because school policies typically mandate that teachers and students use a person's preferred gender pronoun.  So when a 13-year-old boy in Wisconsin recently refused to refer to a female classmate as "they" and "them," he was hit with a Title IX sexual harassment complaint.  Such forced-speech pronoun mandates call to mind the repressive policies seen in totalitarian societies.

In repressive countries, free speech is verboten.  That way, unruly segments of the population can be monitored and controlled.  The 2020 DeVos regulation struck the proper balance, so overly broad definitions of sexual harassment would not be allowed to squeeze out First Amendment free speech.

But the draft Biden regulation plans to define harassment as "conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person's ability to participate" in their education.  This means that any comment, joke, or gesture that is seen as "subjectively" offensive could trigger a Title IX complaint.  So say "dasvidaniya" to free speech on campus!

The foulest features of the Soviet system were the infamous Show Trials, in which judicial authorities pre-determined the guilt or innocence of the accused.  This foreshadowed a similar approach on American college campuses, resulting in a pronounced bias against the male respondent in Title IX cases, which judges called out in 45 judicial decisions.

When the same person serves as both investigator and adjudicator, bias becomes baked into the process.  On college campuses, nearly 50 judicial decisions found biased, "victim-centered" investigations to be widespread.  And under Biden's proposed single-investigator approach, the same person could serve as both the investigator and decision-maker — what critics often deride as "judge, jury, and executioner."

Even the right to review evidence is now at risk.  Under the DeVos rule, both parties were entitled to "inspect and review any evidence obtained as part of the investigation."  But under the proposed rule, persons will be allowed access to only a "description of the relevant evidence."  This information can be provided either "orally or in writing" — which means that a 100-page investigative report could be boiled down to a brief verbal summary by a college administrator.

With the Soviet Show Trials, at least there was an actual trial.  But the Biden rule would make hearings optional, allowing adjudicators to ask their questions "during individual meetings with the parties."  The Biden approach would also dispense with cross-examination, again echoing the anti–due process mindset that plagued the Soviet Show Trials.

So if a college wants to subscribe to Beria's "accusation equals conviction" philosophy, all it needs to do is designate the same person to be the investigator and decision-maker, provide the accused only verbal summaries of the evidence, eliminate hearings, and dispense with pesky cross-examination.  It's really that simple!

But the most troubling part is how the proposed regulation turns male students into "non-persons."  The subtitle of the Department of Education's June 23 press release says, "Department Commemorates 50 Years of Protecting and Advancing the Rights of All Students" (emphasis added).

The release then refers to "women" and "girls" three times.  But no mention of "men" or "boys."  This with open disregard for the fact that numerous judicial decisions found institutional sex bias against the male student.

In other words, the Department of Education cares about "all" students, as long as they identify as female or some other gender.  So what about male students?

Edward E. Bartlett is a former university professor and worked for 17 years for the Department of Health and Human Services.

Image via Pxhere.

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