the national interest

Let’s Argue Some More With Ezra Klein About Liberals and Due Process

Photo: Hobart and William Smith College/Facebook/Kevin Colton

The current debate over campus rape is less important for a set of specific rules on campus — though the potential that these rules backfire is probably much higher than advocates are admitting — than for what it shows about broader currents of illiberalism that have moved beyond the far left and into the mainstream. I recently cited an Ezra Klein column as an important marker in this social change. The significance of the column lay in the combination of the fact that it was authored by an influential journalist who is (justifiably) admired for his fairness and the striking illiberalism of its argument.

Klein, as one might expect, disagrees. There are three points of contrast between us.

1. Affirmative consent and due process are basically unrelated. (Klein: “The Yes Means Yes law just doesn’t have much to do with procedural due process.”)
I never claimed that they’re the same thing, which is why my thesis sentence, “The substance of the law itself has less significance than the intellectual flavor of the arguments marshaled on its behalf,” tried to turn the focus away from a specific law to the arguments made for it.

But the relation between the two is closer than Klein concedes. The function of the law will be to technically define a large proportion of sexual encounters as rape, with the understanding that charges will never be filed because neither party actually considers them rape. (Amanda Marcotte: “The law has no bearing on the vast majority of sexual encounters. It only applies when a student files a sexual assault complaint.”) That is to say, the function of the law will be to shift the presumption of most investigations from innocence to guilt.

2. Critics are wrong to expect due process in college disciplinary hearings. (“College hearings do not carry the full guarantee of due process that, say, criminal legal proceedings do.”)
Nobody is claiming that the same rights should apply to campus justice as to regular courts. “Of course, campus justice need not contain all the safeguards of a criminal proceeding,” I wrote, “But since they are a quasi-judicial procedure, and often held explicitly in lieu of formal police charges, we might expect them to at least broadly reflect our expectations of justice.” Twenty-eight members of Harvard’s faculty have signed a letter charging that the school’s handling of sexual misconduct lacks the basic due process required.

3. Nothing in Klein’s column opposed due process. (“That is, seriously, among the most insane things I’ve ever seen someone read into my writing.”)
I am as baffled by Klein’s protestations as he is of my reading. Here are some of the ways he believes campus investigations ought to work: A system where the critics’ worst fears come true, colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations, men are frightened, the results feel unfair, and the stories become legendary as cautionary tales.

None of the descriptions he used, which were quite extensive, describes due process as I understand it. A system of due process should be, to the greatest possible extent, predictable, so that a person stands a good chance of understanding what behavior breaks the rules and what doesn’t. It should above all be fair, to the maximum possible extent. Granted, every system is going to produce some unfair rulings. But Klein is endorsing a system where “the results feel unfair” — not as an occasional failing, but as a desired outcome. If he thinks that is compatible with due process, we simply have dramatically different ideas about what due process means.

Update: To be more clear about this, in his update, Klein writes, “No, of course innocent people shouldn’t be convicted of sexual assault.” This is what we’re arguing about; I think he is advocating a system that would clearly do this. His previous column had this passage:

Then there’s the true nightmare scenario: completely false accusations of rape by someone who did offer consent, but now wants to take it back. I don’t want to say these kinds of false accusations never happen, because they do happen, and they’re awful. But they happen very, very rarely. Sexual assault on college campuses, by contrast, happens constantly. This is, in a way, the definition of what it means to be entitled: the rules are designed to protect you from dangers that barely exist at the expense of exposing others to constant threat.

He is arguing that it’s bad to charge somebody on the basis of “completely false” accusations. But the rest of the paragraph, describing the rareness of false charges as a form of entitlement, along with the rest of the column, all point toward an argument that people in ambiguous situations should be charged – even those that feel unfair.

I read that as him arguing for a system that is not (in my opinion) due process and which would clearly result in charging more innocent people as rapists. But this is my interpretation and Klein disputes it.

Let’s Argue Some More With Ezra Klein