Julianna R. Poole
Conor Friedersdorf asserts that the ACLU is in the wrong for not demanding the same standards of due process for accused college sexual abusers who are “tried” in an administrative college hearing as are required in criminal trials.
The due process that the ACLU advocates is rooted in the Fifth and Fourteenth Amendments’ due-process clauses, which state that a person shall not be deprived of “life, liberty or property” without “due process of law.” In the case of administrative college hearings, there are no proper judges or juries, the strict rules of evidence followed in a criminal proceeding are not the same, and, most importantly, the accused’s “life, liberty or property” are never in jeopardy in the literal sense.
In fact, the accused is never placed in criminal jeopardy, because it is not a criminal proceeding. If the accused is not found guilty in a college hearing, nothing precludes the filing of proper criminal charges in which the standards and due-process requirements that the ACLU fights for must be followed.
I consider myself a strong proponent of civil and human rights, but when we start demanding “due process of law” in situations where the law is in no way involved, we lose sight of what we are fighting for, which is freedom from government intrusion. If an accuser chooses to go the administrative route instead of the criminal route, they can only expect administrative rules to apply.
P. Aiden Hunt
I am a second-year law student at Rutgers Law School in Newark, New Jersey. I spent my summer and my semester analyzing due process in campus sexual-assault tribunals. I was incredibly disappointed in Mr. Friedersdorf’s lack of a basic understanding of what due process entails. Due process is not some abstract synonym for “fair process”—it is the minimum procedure required for a process to pass constitutional muster. Mr. Friedersdorf fails to wrestle with the 40-plus years of litigation at the Supreme Court deciding what, exactly, due process is in a campus hearing. First, for the due-process analysis to be triggered, there must be a liberty interest at stake. There exists no fundamental right to education, and not all circuits agree that individuals have a constitutional liberty or property interest in a higher education.
This letter has been updated to remove a reference to legal data that could not be verified.
It is clear from the ACLU’s statement alone that they are standing with survivors rather than the accused, which fits perfectly into the larger mission of the organization, defending those who have historically been cruelly ignored and put-upon. Mr. Friedersdorf possibly believes the ACLU, and perhaps all of us, should ignore history or intention when judging these new rules.