Supreme Court

Ruth Bader Ginsburg Thinks Some College Title IX Trials Are Unfair to the Accused

Supreme Court justice says the #MeToo movement is important, but so is due process.


Josh Edelson/ZUMA Press/Newscom

Supreme Court Justice Ruth Bader Ginsburg thinks colleges and universities are violating the due process rights of students facing sexual misconduct charges.

The Atlantic's Jeffrey Rosen asked the Court's second-ever female justice for her thoughts on the #MeToo movement. Unsurprisingly, Ginsburg was happy about the increased public attention being paid to the problems of sexual harassment and gender-based inequality in the workplace. But she was also concerned about protecting the due process rights of the accused—particularly on college campuses:

Rosen: What about due process for the accused?

Ginsburg: Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There's been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that's one of the basic tenets of our system, as you know, everyone deserves a fair hearing.

Rosen: Are some of those criticisms of the college codes valid?

Ginsburg: Do I think they are? Yes.

Note that Ginsburg was asked about due process, but not campuses specifically. The fact that she immediately suggested college codes of conduct as an example of a policy that sometimes violates "the basic tenets of our system," says a great deal about the glaring unfairness of the modern approach to Title IX, the federal statute that requires universities to investigate sexual harassment and assault. And Ginsburg didn't just make note of the controversy; she explicitly said critics of the current procedures have a point.

One of those critics, Education Secretary Betsy DeVos, has rescinded some of the federal guidance that had contributed to the problem. A legacy of the Obama-era campus sexual misconduct, dictates the infamous 2011 "Dear Colleague" letter had instructed universities to follow sexual misconduct procedures that left little room for due process. The new administration withdrew this letter last September, though most universities have insisted that they will continue to operate as before.

This means that many students who are accused of misconduct will still face investigatory procedures that seem hopelessly biased against them. Accused students are routinely denied the right to confront their accusers, refused access to crucial information about the nature of the charges against them, and forced to prove their innocence to a single bureaucrat who gets to play judge, jury, executioner, lead detective, and prosecutor.

Defenders of what are commonly called "victim-centered" investigatory procedures say preventing rape is more important than obeying due process. But this is a false dichotomy, according to Ginsburg:

Rosen: I think people are hungry for your thoughts about how to balance the values of due process against the need for increased gender equality.

Ginsburg: It's not one or the other. It's both. We have a system of justice where people who are accused get due process, so it's just applying to this field what we have applied generally.

Students who were found responsible for sexual misconduct often sue their universities for violating their due process rights, and many of them have prevailed in court. If a campus sexual misconduct case adjudicated under the deficient standards ever made it all the way to the Supreme Court, it certainly sounds like Ginsburg would question whether the accused was given a meaningful opportunity to defend himself.

NEXT: Trump Calls Oprah 'Insecure', Former Trump Aide to Turn State's Evidence, Time #MeToo 'Silence Breaker' Accused of Workplace Sexual Misconduct: A.M. Links

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  1. At the risk of being banned again by Reason – I agree completely. There should be some due process or at least an appeals process, even in private universities that don’t technically have such a duty.

    1. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

      This is what I do…

  2. She finally woke up from her nap and noticed Title IX, huh.

    1. Woke up being the unfortunate part. Not that I wish her ill [lest any federal attorney is monitoring] but she does represent the best opportunity for another Gorsuch to be appointed.

      1. However, she did the right thing here, by noting that due process is proper for those accused of any crime. So … yeah … she could move on. We don’t know, tho, whether or not Trump will do as well with her replacement as he did with Gorsuch replacing justice Scalia. He probably will get someone more conservative, but will he get someone that’s a Libertarian such as Gorsuch? That’s the question.

        1. Gorsuch is a social conservative. He has attacked libertarianism. He’s for the drug war, for prostitution being illegal….

          “Gorsuch also rejected the “libertarian case for assisted suicide” because, he argued, “faithful adherence to libertarian theory” would also justify the legalization of “mass suicide pacts…duels, and the sale of one’s life (not to mention the use of now illegal drugs, prostitution, or the sale of one’s organs).”…..o-the-supr

          1. The so-called libertarians here don’t care about criminal justice reform and other social issues 1/100th as much as they care protecting corporate rights and stopping Obamacare; hence the desire to see SCOTUS stacked with socons to get those things.

          2. Long time lurker, first time poster. Probably lean a lot left of many Reason-ers. Registers just to respond to above Gorsuch snippet.

            Suggesting that making progress in assisted suicide (certainly for specific situations) will lead to a new-era of dueling is fucking insane and asinine. He is reducto-ing the argument far PAST absurdum. Get the fuck outta here.

            #BurrHamilton2018 #BitchUCrazy

        2. However, she did the right thing here, by noting that due process is proper for those accused of any crime.

          Which ought to be a given for any judge (let alone a veteran of the highest court in the land), not something that is deemed praise-worthy.

      2. Ginsburg is good on a lot of issues that Gorsuch or her replacement wouldn’t be: separation of church and state, free speech, police powers, abortion rights, gay rights… anything on the social liberal side of libertarianism. This is a libertarian site, Gorsuch is a conservative, he’s only better on some issues like gun rights and rights of businesses, but not all.

      3. Gorsuch is a fucking idiot like his mom.

    2. Blind squirrel, nut. Nut, blind squirrel.

  3. Did the squirrels eat the original comments that were posted here earlier? I noticed some of the early commenters got pretty ad hominem

    1. I simply commented that she would croak before 2018 is over and she is a lefty bitch.

      1. Don’t sugar coat it, loveconstitution1789. LOL

        She looks pretty tough to me, though. I’m thinking she goes deep into 2018, if not later.

        1. I think we just woke her up from her 10th nap of the day.

          1. Well, that’s why she’s held on for so long. She takes little naps whenever she’s tired.

  4. So, Reason is now clearing comments when it doesn’t not like them and starting anew?

    Interesting development.

    1. *Gets Glibbining profile updated.

    2. They’re also the ones who took your favorite parking spot this morning and rigged the traffic lights to slow you down. You can’t prove it didn’t happen.

      1. I am retired, so my parking spot is my garage.

        There is a sign that says trespassers will be shot and survivors will be shot again, so I don’t anyone is taking anything from me.

        I take that back. The government is constantly taking stuff from me.

        1. You seem like you’d make a good neighbor.

          1. What’s a neighbor?

            Just partially kidding. In this part of Georgia, you can be good neighbors, miles apart, and mind your own business.

            Plus guns are really popular here. I just bought 100 rounds of .50cal ammo today thanks to Tony/Butt’s nonsense about pushing gun control.

            1. Authoritarian wingnuts can root for a thin, tough old woman to die.

              Educated, tolerant, decent Americans can consider the actuarial probabilities of a flabby old white man with an ugly soul and lousy habits, or perhaps the mortality prospects of a aging black man carrying some excess weight.

              Justice Ginsburg outlasted Scalia. I expect her to outlast Pres. Trump and, for laughs, Justice Thomas.

              Carry on, clingers.

              1. Rev. Arthur L. Kirkland|2.19.18 @ 3:58PM|#
                “Authoritarian wingnuts can root for a thin, tough old woman to die.”

                Hihn sock? Just one more ignoramus?

                1. Not a Hihn sock. He’s one of the newbies who migrated here from Volokh. Unlike Hihn, this one doesn’t even pretend (poorly) to be libertarian.

                  1. I claim to be libertarian mostly when compared to the authoritarian, nanny-state conservatives who populate this site’s general message boards and legal blog.

                    1. You’re not though. Your a lefty just like the other lefties that hang here.

                      The MO is similar. You lefties act like Libertarians and spout lefty nonsense. That is what the left is paying you for. You lefties cannot have Libertarianism get more popular than the Democratic Part after all.

                    2. I’m a no-good lefty.

                      You’re an authoritarian, disaffected, stale-thinking bigot.

                      The important point is that my preferences have aligned with the course of American improvement for a half-century, and the liberal-libertarian alliance will continue to frustrate conservative aspirations in America for so far as the eye can see. The good old days for which right-wing goobers pine not only are not coming back, but indeed they never existed.

                      Feel free to take your backwardness and bigotry to the grave when it is time, secure in knowing that you will be replaced by a younger, better voter who will act in direct contravention to your political preferences.

                      Until it’s time to perform that civic service by getting out of the way of America’s progress, carry on, clingers.

                    3. Everyone, authoritarian is now defined as,”Hey government, get the fuck out of my life.” The funny part is it seems to be in direct contrast to how liberal was redefined so many years ago.

                      No idea where bigot came from in this conversation. I guess it got a new definition too.

                      The best part is that a younger, better voter appears to be contrived out of some mass of emotionally driven justice warrior that receives all of their news from Facebook and the Daily Show.

                    4. Fuck off, slaver “Rev.”

                    5. “I claim to be libertarian”
                      You’re a lying sack of shit.

              2. The lefties are the clingers. Just look how they’ve clung to the nonsense about Trump colluding with the Russians. So, for a little levity, I offer my poem:

                The Red Menace 2016

                The Russians are coming, the Birchers were right,
                They’ll sneak in your room in the dead of the night,

                The Russians are coming, they’ve taken the net,
                They’ve hacked all the votes, we need a re-set,

                Load all you guns, hide under the bed,
                Store up provisions and buy some more lead,

                The Russians are coming with big furry hats,
                There’ll be a red star on all our doormats,

                The Russians are coming, their passports are fake,
                They’ll move in next door, while you’re not awake,

                The Russians are coming, you’d better shoot faster,
                Soon Alger Hiss will be your new master,

                The Russians are coming, run for your lives,
                They’ll steal all your children and rape all your wives,

                Call Robert Welch, take the anti-red vow,
                The Russians are coming, it’s all over NOW!

                John B. Baker Dec. 2016 (The democrats have finally acknowledged the Russian menace, so evident for so long to so many right wingers.)

              3. Retirement would be okay, too. Hey, we all got to go sometime.

        2. I am retired

          Would be totally not suprised if “retired” is lc89’s euphemism for SS diability.

          1. Would be totally not suprised if “retired” is lc89’s euphemism for SS diability

            Could I get that in English please.

            1. I would not be surprised if “retired” is lc89’s euphemism for SS disability.

          2. I am not sure what Nazi ShultzStaffel diability has to do with anything.

    3. Taking an entire comments thread to the woodchipper is not a good development. I’m not sure what the original posts said, but maybe we’re not supposed to suggest that a SCOTUS justice fall into a piece of agricultural equipment. Like a combine. It all stinks, though. If a sizable non-profit publication is afraid of backlash from the Feds for comments on their website, Orwell’s predictions are irrefutably true. The FBI really ought to be more worried about credible tips regarding school shooters than a bunch of bitter assholes around here. I guess we know which issues they really want to prevent.

      [N.B. I am not hoping that anybody find their way into any type of heavy machinery whatsoever. If Justice Ginsburg would like to change her mind about retiring and step down to enjoy a peaceful, long retirement, preferably very soon, that would be lovely.]

      1. Maybe they’re not afraid of a backlash from the Feds, but rather think the comments were hindering the organization’s actual mission of spreading libertarianism.

        1. “Maybe they’re not afraid of a backlash from the Feds, but rather think the comments were hindering the organization’s actual mission of spreading libertarianism.”

          Or maybe someone hit the wrong key.
          This has happened maybe once a month or so and the content of the comments is variable.

  5. Things I never thought I’d see for $2000 please, Alex.

  6. Squirrels ate part of this post too:

    Did the squirrels eat the original comments that were posted here earlier? I noticed some of the early commenters got pretty ad hominem, so maybe Reason ran the original post through the woodchipper before some US Attorney got hold of it.

  7. She only has concern for ‘some’ of the process, when it is the entire venue that is inappropriate.

    Why am I not surprised?

    1. That narcissism of those types of people is legendary. RBG thought she would get to choose a big case on the way out and some Democrat nominate another to fill her seat. She is irreplaceable in her mind though.

      Instead, she will croak at work because she is ancient and they won’t be able to get the smell out of her chair.

      Trump will replace her with a justice that actually wants America to succeed.

      1. Which of the relevant people gorges on stupid food, is clinically obese, and looks like he belongs on a cold slab after one sedentary day too many?

        Justice Ginsburg has made a handy career of being superior to paunchy, pastey old white dudes with stale thinking. I see little reason to doubt that she will continue.

        1. “Which of the relevant people gorges on stupid food, is clinically obese, and looks like he belongs on a cold slab after one sedentary day too many?”

          Hihn sock? Random ignoramus?
          You decide.

          1. He doesn’t sound like Hihn. Assuming Hihn is even Hihn anymore. And it’s not like there are a shortage of progtarded trolls out there.

            1. He’s a visitor from the Volokh Conspiracy. Give him a nice Hit ‘n Run welcome!


                1. Have it, wingnuts.

                  Don your finest but unconvincing libertarian drag, and masquerade as reasonable lovers of liberty in an effort to conceal your nanny-state-craving, bigoted souls that pine for good old days (that never existed) because your stilted personalities can’t quite manage worthwhile social relationships in modern America.

                  I always enjoy a good joust with a bunch of backwaters-inhabiting, stale-thinking faux libertarians.

                  1. Thanks socialist. God bless you.

                    You have given us Trump, one of the best presidents in 100 years. Thanks to your lefty nonsense, more and more people are rallying to rollback government, ignore the media, and ignore elitists like Hilary Clinton.

                    America just might survive after all.

                    1. Right-wingers have been losing for a half-century in America. Their betters have shoved progress down conservatives’ throats — environmentalism, voter suppression, abortion, treatment of gays, creationism in classrooms, the drug war, prayer in schools, treatment of women, social programs, consumer protections, abusive policing, and a dozen other issues — and only true-believing goobers expect America to return to the days of wife-beating, segregated schools, environmental plunder, gay-bashing, the teaching of nonsense, and the war on doobies.

                      The most conservatives can accomplish is to delay, briefly, America’s improvement. Unless you yahoos genuinely expect Trump to transform economic fundamentals so that half-educated, economically irrelevant, bigoted, superstitious, disaffected, stale-thinking white men in our backwater towns to prosper — and at the expense of well-educated, accomplished, tolerant residents of our modern, successful communities.

                      Carry on, clingers.

                    2. “Right-wingers have been losing for a half-century in America.”

                      First, most of us are ‘right-wing’ to proggies; most are pretty liberal regarding many issues, so you should understand why we laugh at you.
                      Secondly, ‘they all are doing it’ is lame coming from just about anyone, but expected from some lefty dimwit.

                    3. By America’s improvement do you mean the many varied areas that American had been in decline in comparison to its competitors? Or do you simply mean the growth of regulations so cumbersome that the government has no idea as to how many exist? Or do you meant the persistent pecuniary precipice we find ourselves?

                      Your rainbows suck. The only thing at the end of them are more Republicans and Democrats sucking at the magic rays of graft.

                    4. Swipe keyboards suck. I promise I know grammar.

                  2. I always enjoy a good joust with a bunch of backwaters-inhabiting, stale-thinking faux libertarians.

                    That’s either a case of projection or of multiple personality disorder.

          2. It’s a spammer as far as I’m concerned, spamming prog bullshit.

        2. And you call others bigots. You people are so funny.

        3. You hate whitey?

          1. Chili, why did you put a question mark at the end of your last comment?

  8. So is the outrage machine spooling up to demand her head on a pike for blaspheming the holy writ of Title IX? That’s the usual cycle for responding to someone who dares suggest those who are accused have a right to question their accusers, and other such constitutional nonsense.

    Or does that only apply to someone who’s not one of the progtards’ anointed high priestesses?

    1. It’ll be glossed over and spun, maybe reframed out of context.

    2. Our society has a system for delivering due process, Title IX is not, and never will be it.

  9. The fact that she immediately suggested college codes of conduct as an example of a policy that sometimes violates “the basic tenets of our system,” says a great deal about the glaring unfairness of the modern approach to Title IX…

    Because if a doddering leftist like the Ginsburglar can see it, anyone should? I like the way you think, Soave.

    1. RBG so old, her Social Security Number is 1.

    2. RBG was Woke before Woke was cool.

      RBG was Woke when Wild Bill Hickok was alive. I’ll just regress, because I feel I’ve made myself perfectly redundant.

      1. RBG is the one Annie had to get her guns from.

        1. Which Annie? Oakley? Orphan? Little Oral?

    3. RGB so old when God said, “Let there be light” she flipped on the switch.

      1. RBG so old, her maiden name was Osaurus.

  10. Some?
    Maybe the mental checkups should go beyond Trump.

  11. When you’ve lost The Notorious RBG…

    1. Tu should Pac up…..

  12. When Ginsberg was appointed by Bubba and joined the Court in 1993, she was pretty liberal; I’m thinking she hasn’t changed much but is no longer considered liberal.

    1. “Neoliberal quisling” is probably what the raving loons will call her.

    2. RBG has always been a socialist but now the left has almost abandoned the stolen term “liberal” for SJW, left-wing, progressive, socialist, etc.

      She voted that Americans have to buy insurance under threat of death.

      1. But ironically that death does not ensure then a coffin, as Alito pointed out.

  13. #notwokeenough

  14. “procedures that left little room for due process”

    Yeah! Who needs a 5th and 14th Amendment.

  15. There are so many unfair ways to ruin someone’s character. Ever been called racist in a political debate? Just the accusation of certain acts can assassinate someone’s character.

    1. I choose to hit back, harder. When Tony shouts racist, I shout back, pedophile. I will NEVER cower before a progressive. Every goddamn one of them is nothing more than a dirty hippie when you get down to it. And no one should ever cower before a dirty hippie.

      1. Yup.

        More and more Americans are really getting sick of lefty bullshit.

  16. Dear Ruth Bader Ginsburg – Many of us already know that people are considered innocent until proven guilty.
    That is why it is very important for the accused to be investigated, and to have needed Due Process needed trials.

  17. I applaud Justice Ginsburg for speaking the truth. Accused doesn’t necessarily mean someone is actually guilty. 20 or so witches were burned or hung at the stake in Salem and Danvers for not letting due process run it’s course.

    Growing up in this area taught me look before you leap and there’s two sides to every story. Sometimes the truth is not forthcoming, so its nice that we’re not still burning people for crimes they didn’t commit.

    In the modern world, we have restraining orders and such in place to protect a victim if in the course of due process, what they allege turns out to be accurate.

    I’m not siding with the likes of Harvey Weinstein’s, eventually he’ll faces his alleged crimes in a court of law.

    1. But did she look like a witch? Did she weigh the same as a duck?

    2. I applaud Justice Ginsburg for speaking the truth. Accused doesn’t necessarily mean someone is actually guilty.

      It’s sad that a statement of that sort is considered applause-worthy coming from a SCOTUS justice. It’s like applauding a statement of, “First, we should do no harm” coming from a world-famous doctor.

  18. According to *The Atlantic,* Life Tenure Is Too Long for Supreme Court Justices.

    They’re probably worried about people like Ginsburg hanging on forever…wait, the article was published in 2005. Well, I’m sure the Atlantic’s attitude hasn’t changed.

    1. My idea: eliminate fixed SCOTUS justices. Each year 18 random appeals court justices would be selected. Nine would select the cases that will be heard in the following term (without knowing who exactly will be deciding them), nine would decide the cases selected for review in the previous term.

      1. That’s actually a good idea.

        1. It would require a constitutional amendment, since under the current constitution the President and Senate choose the Justices.

          1. I’d also say, include some state supreme court justices in the random drawings. Give the federal judge a 5-4 majority when it comes to picking cases, and give the state justices a 5-4 majority when it comes to deciding cases.

          2. We just more Americans to demand government employees be reasonable. There is no good from having an old person as a judge who cannot even stay away or has massive health problems.

            Its like fucking McCain. He should have stepped down before election 2016, so a younger conservative can get in there. McCain just thinks he is irreplaceable.

            Instead he will croak right before some important vote in the Senate and it will mess up rolling back the government.

            1. “McCain just thinks he is irreplaceable.”

              Still slogging through the book on FDR; he did and his biographer (hagiographer?) did also.

            2. Yep. Just like Teddy Kennedy screwed the progs on ObamaCare.

  19. RBG claims she was sexually harassed in college. I’m sure the alleged perp was blind.

    1. Judge for yourself

      Not the first image, the third one, the image captioned “December, 1953 Studio photograph of Ruth Bader, taken in Dec. 1953 when she was a Senior at Cornell University.”

      1. Suggested alternate caption: “When she was good, she was very very good, but when she was bad, she was Bader.”

      2. “Not the first image, the third one.”

        This is important.

  20. Well, well, well. Look who made Drudge. That’s going to put a dent in your cocktail party invites, Soave.

  21. In related news, college enrollment is declining.

    1. Thanks for that info. Sounds promising.

      Although, I am sure private universities have socked away enough money for decades of less income.

  22. I tell my son away at college to find girls to date off campus, if possible. This PC bullshit can ruin a young man’s life before it gets started. I’m against rape and harrassment of women, but this one-sided collegiate system of justice is total BS.

    1. I went to an all-male college where they simply ignore Title IX bullshit.

  23. I am glad Justice Ginsberg is making this point as feminist extremists seem to be trying to change the law to guilty until proven innocent.

    1. No, the prosecution still has to prove the defendant is a white cis male.


  24. RBG is right. It should be noted that most colleges do have a hearing process where the respondents do get to ask questions of their accusers. There are many rules that frame the hearing process. Many of the scary stories we hear about are the cases where due process is not being followed. That should not be surprising to anyone generally familiar with our court systems. We know that millions of people get harassed by cops and brought up on charges that they need to plea out of because there is no chance in heck they will get adequate legal representation and will face a judge with too much on her plate to give a rat’s you-know-what about their case. We spend way more time nitpicking these cases of spoiled and entitled frat boys who cry that they might get kicked out of their university for being jerks when they do not bat an eye if management kicks out someone from their country club. Universities need to be run just like private businesses up until the point where it actually affects their life.

  25. ….And then she croaked.

  26. Colleges need to get a grip on what I suspect precipitates the majority of the complaints — drunken sex followed by regrets (and in some cases brainwashing by advocates). Should that really haunt someone for the rest of his life? And if they are both equally drunk, why aren’t they both brought up on charges since neither one, by definition, could have given effective consent? Yet they both had sex.

  27. Is something happening to the comment section? I haven’t noticed anything unusual.

  28. “Ginsburg was happy about the increased public attention being paid to the problems of sexual harassment and gender-based inequality in the workplace. But she was also concerned about protecting the due process rights of the accused?particularly on college campuses:”

    But if we use due process instead of university kangaroo courts, won’t we remove an important means of virtue signalling for the left? We also have to keep in mind that laws impede the left in their pursuit of happiness (and more free stuff which makes them even happier).

  29. Some? All crimes should be handled by police, period.

  30. I sincerely believe it all could have been so very different — so much better — between men and women. Maybe there’s still hope. See:

    “How We Waded Into The Sexual Harassment Quagmire — Taking the Long, Hard Path Out: One Man’s View” http://malemattersusa.wordpres…..-quagmire/

    This is a rather shocking in-depth commentary that may be the most thorough analysis you can find of what I think has for many decades been the sexes’ most alienating and destructive behavioral difference.

    I believe this difference, supported by both sexes, results not only in most of the ordinary sexual harassment we hear of, but also in much of the sexual coercion of women.

    It also addresses the question no one has ever asked: What happens when toxic masculinity meets toxic femininity?

  31. If rape is such a horrible crime that presumption of innocence is a luxury we can’t afford, would the same not also be true of murder? If not why not? Obviously I’m only asking because I’m worried about it getting harder to get away with raping people, no pun intended.

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