“For a woman to come forward in the glaring lights of focus, nationally, you’ve got to start off with the presumption that at least the essence of what she’s talking about is real, whether or not she forgets facts, whether or not it’s been made worse or better over time.”
Former Vice President Joe Biden said this in 2018, speaking about the allegations made by Christine Blasey Ford against then-Supreme Court nominee Brett Kavanaugh. This statement was consistent with Biden’s message over the years as the leading proponent of a system under which countless college students accused of sexual misconduct were suspended or expelled from school without so much as a hearing or the presumption of innocence.
On the campaign trail, Biden has promised to bring back that system if elected. For instance, he has pledged to restore the disastrous 2011 Title IX “Dear Colleague” letter, rescinded in 2017, that stripped accused students of critical due-process protections in campus sexual misconduct proceedings. Spurred on by the public advocacy of Biden and others, that letter kicked off an era of aggressive Title IX misenforcement that has developed a legacy of injustice through profoundly unfair disciplinary proceedings. Since 2011, more than 600 accused students have sued their universities alleging they were denied even the most basic due-process protections in those proceedings, and many courts have agreed with them.
Now that Biden himself has been accused of sexual assault by former staffer Tara Reade, he and his allies find themselves scrambling to distinguish this situation from those in which the principle of “believe all women” should apply. At the same time, some who normally call for due process and evenhandedness in the face of sexual assault allegations are filling social media with the type of #IBelieve hashtags we would normally expect from their opponents on the issue.
This is wrong, and we all know it. Were we or someone we loved to be accused of sexual misconduct, none of us would simply assume the accusation to be true based on the fact that it was made, or on the accuser’s identity. Even from a purely mercenary political view, the allegations against Biden, along with those lodged against President Donald Trump, former U.S. Sen. Al Franken and Justice Kavanaugh, underscore the necessity of evaluating complaints thoroughly and consistently.
There is no better time to set our collective partisanship aside and take this opportunity to reach a mutual understanding of the value of due process and the presumption of innocence.
This means reconsidering the institutionalization of the view that any accusation of sexual assault must automatically be believed. Both on campus and off, policies built upon that premise have unjustly upended lives and careers and made a mockery of due process. And while Biden, Trump and other powerful people accused of misconduct have many resources with which to defend themselves, the throngs of nameless college students who find themselves in similar situations often have only the hope of a fair hearing.
The Biden controversy takes place as the Department of Education nears finalizing long-awaited new regulations to ensure that allegations of sexual misconduct on campus are investigated thoroughly and adjudicated fairly, without sacrificing procedural safeguards. Unfortunately, Biden and many of those rushing to his defense are among these measures’ strongest critics.
Some will likely use these allegations to pressure Biden into continuing to campaign against the new regulations, as a way of proving that he generally supports accusers, just not Reade. We hope instead that this incident will lead Biden and his supporters to reassess the impact of eliminating safeguards like the presumptions of innocence, the ability to review all of the evidence in an institution’s possession, the right to be represented by legal counsel, even the right to a hearing itself — all of which are routinely denied on our nation’s campuses.
Meanwhile, those who delight in watching Biden be hoisted by his own petard should instead demand the same type of evidence-based inquiry into Reade’s allegations that they would demand under other circumstances. Two wrongs don’t make a right.
Playing politics with due process devalues the individual lives and experiences of the accusers, whose complaints end up being evaluated based not on evidence, but on partisan utility. This, again, is wrong, and is a powerful reminder of how due process benefits the accuser as well as the accused. Fair procedures that don’t allow allegations to be swept under the rug, corners to be cut, or identity to determine outcome are what separate a witch hunt from a credible process likely to reach a just outcome.
Whether on or off-campus, honest investigations and due process should not be partisan issues. Our support for fair procedures should not depend on who is accused.
Samantha Harris is senior fellow and Joe Cohn is legislative and policy director of the Foundation for Individual Rights in Education (thefire.org). They wrote this article for InsideSources.com.