Editor’s note: This was the last dissent written by members of the Yale Daily News 2023-2024 Editorial Board. The Editorial Board — an independent body from the newsroom — consisted of 12 undergraduate students representing a variety of backgrounds, interests and perspectives, writing weekly on issues of relevance to the student body. In weeks that at least three members of the Board disagreed with the chosen editorial, they could choose to write a dissent.
The Editorial Board has since been dissolved and a majority of previous members of the Board have instead joined the Opinion desk as staff columnists. They will write a joint weekly column about a topic relevant to campus discourse under the name Publius, with their names undersigned. Given the Board’s dissolution, the last dissent written by some members of the Editorial Board is being run under the new byline.
Content warning: This article describes sexual violence.
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This week, Publius — a joint body of opinion columnists consisting of previous members of the now-defunct Editorial Board, an independent body from the Yale Daily News’ newsroom — wrote an article about Yale and Title IX. The piece very briefly commented on due process but neglected to comment on the Biden administration’s proposed weakening of it. We, a minority of members, have thus found it fitting to author a dissent.
Due process is a legal standard that requires our justice system to practice a set of procedural safeguards that bring light to the truth and help ensure just outcomes. Title IX is a federal law that regulates sexual misconduct on campus; the Biden administration seeks to undermine its current due process guarantees.
Biden’s Department of Education, which enforces Title IX, is proposing to remove requirements for live hearings and cross-examinations. The Department also wishes to lift a ban on the “single-investigator model.” Yale’s bureaucracy could — and noting its history of violating due process, probably would — implement these looser measures if given legal assent, weakening fundamental safeguards for those in Title IX proceedings. Publius, in failing to comment on the looming future of due process, misses something essential.
Last semester, an anonymous opinion column and a piece on Title IX were published, sparking discourse on sexual misconduct throughout campus. Many of these conversations focused on the limited accommodation that the Title IX office and Yale-affiliated organizations can provide. Often overlooked was the nature of hearings of the University-Wide Committee on Sexual Misconduct — hearings necessary for punitive measures related to sexual misconduct — and the importance of upholding due process in them. It is about time we had this conversation.
The 2020 Title IX amendments, authored under the Trump administration, bolstered due process requirements. The proceedings under the aegis of Title IX at universities like Yale are required to abide by these standards, which crucially include live hearings, cross-examinations, and limitations on the power of the investigator.
Yale’s conduct under Title IX, prior to the institution of these higher standards of due process, has been the subject of multiple lawsuits. Just recently, the Connecticut Supreme Court unanimously held that Saifullah Khan, who was expelled from Yale after being accused of raping a peer in 2015, faced university proceedings that “lacked sufficient procedural safeguards necessary to ensure the reliability of the information presented.” He was acquitted of the accusation in a criminal trial. Due to the lack of due process Khan was afforded, he is now able to sue his accuser for defamation.
This is a big deal. Yale’s lack of due process in 2015 made it possible for the content of hearings to be subject to defamation suits. If Yale reverts to less rigorous standards of due process, it may well leave future complainants vulnerable to similar retaliatory lawsuits.
In 2006, three lacrosse players at Duke were falsely accused of rape. They were met with a presumption of guilt by the campus at large. Before the trial began, 88 of the college’s professors penned an open letter condemning those accused. The campus convulsed with protests and posters that assumed the lacrosse players were guilty. Moreover, the district attorney, Mike Nifong, was dishonest about the case and attempted to withhold DNA evidence. For this, he was later disbarred. In a civil suit against Duke, the three accused later won approximately $20 million each.
This incident created enduring harm to the three accused. More broadly, it damaged the country’s faith in the integrity of sexual assault proceedings. If we want complainants to be taken seriously, as is fitting and necessary, we must be able to count on an effective means of justice.
Beyond the headlines of cases like Duke’s are hundreds more that involve the undermining of due process; few of these stories gain comparable traction. Many such cases involve students of color. Lara Bazelon, who directs the University of San Francisco’s Criminal & Juvenile Justice Law Clinic and has dedicated herself to fighting false accusations, emphasizes how the undermining of due process exacerbates racial injustice. Take Colgate University, which was investigated for racial discrimination in its Title IX processes prior to the 2020 amendments. The Office for Civil Rights found that during the 2013-14 school year, about half of sexual assault accusations were against Black men. That year, only 4.2 percent of Colgate’s students were Black.
The Biden administration’s notice of proposed rulemaking on Title IX is 701 pages long and contains two major blows to due process. First, they propose eliminating the requirement of a university to “hold a live hearing with advisor-conducted cross examination.” Live hearings and cross-examinations are often uncomfortable proceedings, but they are needed to uncover the truth. To allow an administrator to waive this right without the consent of the parties involved is dangerous.
Second, they seek to permit post-secondary institutions to reintroduce the “single-investigator model.” This was forbidden by the 2020 amendments, which prudently noted that no single person should be trusted to serve as investigator, judge and jury. The Department’s promise that this will lead to the “fair treatment of all parties” is false. Granting a single administrator that much power in proceedings paves the way for flagrant aberrations of justice. No one person, who inevitably has bias and may be negligent, is capable of justly uncovering the full truth.
Some advocates suggest these amendments would ultimately be inconsequential. We are also told we should wait for the policy to be enacted before commenting on it, for to do otherwise would be guesswork. We reject this obfuscation. To ask one to remain silent until a policy is fully enacted flouts basic standards of democratic deliberation.
The Biden administration’s proposed changes are inimical to due process. Fortunately, in some cases they may allow universities to maintain higher-than-necessary standards of due process. The Department of Education writes that they would “permit, but not require, all postsecondary institutions to hold a live hearing.” Out of principle and in light of the Khan case, Yale should be doing everything in its power to uphold due process and ensure its proceedings are just.
Due process is a cornerstone of our legal system. By countering bias and discrimination in proceedings and allowing all parties to state their case, it helps ensure just outcomes. We must preserve it. In every situation, Yale should stand up for the rights of its students, whether or not the Department of Education permits the shirking of this responsibility.
The majority of Publius’s members appear to take due process for granted. We do not. We thought it necessary to speak up against their neglect. There are many reasonable accommodations that should be made for complainants, but the dismissal of essential fact-finding measures is not one.
This piece was written by a dissenting minority of at least three of the previous members of the now-defunct Yale Daily News Editorial Board. Members of the former body include:
Leadership
Alex Bavalsky, Co-President, Timothy Dwight ‘25
Brooklyn, NY
Nikhe Braimah, Co-President, Branford ‘25
Brentwood, CA
Members
Naina Agrawal-Hardin, Benjamin Franklin ‘25
Ann Arbor, MI
Violet Barnett, Grace Hopper ‘25
Miami, FL
Justin Crosby, Silliman ‘25
Middleton, MA
Josephine Cureton, Ezra Stiles ‘24
San Francisco, CA
Hannah Figueroa Velazquez, Berkeley ‘26
Portland, OR
Michael Garman, Grace Hopper ‘25
Newport, RI
Lauren Hartz, Branford ‘25
Tokyo, Japan
Jack Maketa, Saybrook ‘26
Perkasie, PA
Adam Tufts, Berkeley ‘26
Livermore, CA
Edos Herwegh Vonk, Davenport ‘26
London, United Kingdom
Josephine Cureton and Nikhe Braimah are both Communication and Consent Educators (CCEs). They were not involved in the writing of this dissent. The views expressed in this article represent neither their personal opinions nor those of the program or the Yale College Dean’s Office.