Among the dozens of due process cases filed since the Dear Colleague letter’s appearance, the most significant factor in the outcome is the randomness of judicial assignments. Apart from a small number of cases (several, oddly, from Texas), the lawsuit cases are ones in which the college process was unfair, and the allegation was (at best) dubious. A judge inclined to find a way to produce a fair decision—Judge Dennis Saylor is the best example—will have more than enough facts with which to work.

But the general law on the question remains unclear, with precedents often dating from the period of deference, rooted in the idea that judges shouldn’t second-guess college disciplinary decisions because academics, not judges, know best what constitutes plagiarism, or what kind of conduct violates campus norms. Colleges deserve no deference in adjudicating felonies like sexual assault. But the worst decisions—Judge Abrams’ in the Vassar case, Judge Furman’s in the Columbia case—have featured judges bending over backwards to ignore the facts before them and decide for the college or university.

Last month, Senior U.S. District Judge Sandra Beckwith, a George H.W. Bush appointee, joined this undistinguished list. She heard a lawsuit filed by two accused students at the University of Cincinnati. Even in the world of university sexual assault investigations, UC’s conduct was particularly bad. The university seemed indifferent to potential exculpatory evidence (a security videotape of the dorm as the parties entered). A police detective investigating the case leveled the explosive charge that UC had tried to obstruct a simultaneous criminal investigation, apparently to bolster to accusers’ case. Both accused students were informed that neither party had the burden of proof, therefore abandoning the presumption of innocence. UC allowed one accuser to testify and then flee the room before she could be cross-examined—without then striking her testimony from the record, as basic fairness should require. The university cited a case involving a Connecticut high school student for its refusal to permit meaningful cross-examination. UC allowed the accusers to give a “victim impact statement” before the panel had adjudicated the issue—and determine which party, if either, was actually a “victim.”

None of this record troubled Judge Beckwith, who sided with the University of Cincinnati in all respects. You can read her full opinion here.

Judge Beckwith interpreted the relevant precedent as not having “clearly established that [the accused students] were entitled to the presumption of innocence,” or that they “could not be assigned the burden of proof.”

It’s true that since issuance of the Dear Colleague letter, colleges and universities have frequently presumed guilt. But they generally go through the motions of providing fairness. So it’s jarring to see a federal judge suggest that students accused of sexual assault don’t have a right to be presumed innocent. Even Judges Abrams and Furman didn’t go this far.

Judge Beckwith also offered a remarkable defense of UC’s decision to deny the accused students the right to a lawyer in the proceedings. Because UC elected to have a student life bureaucrat (who was expert in sexual assault proceedings) rather than a lawyer prosecute the case, the accused students couldn’t plausibly claim a right to an attorney. The case, this life-tenured judge added, didn’t have “unusually complex” rules. She was talking, of course, about an allegation in which (in one of the cases) an undergraduate student was forced to defend himself on a rape allegation. The Beckwith standard would provide a roadmap for schools to further weaken accused students’ rights.

According to Beckwith, none of these findings are inconsistent with her belief that “a student faced with expulsion or other discipline for violating school rules is entitled to due process before he can be deprived of his interest in continuing his education.”

In ostrich-like fashion, Beckwith concluded that “it is not reasonable to infer that UC has a practice of railroading students accused of sexual misconduct simply to appease the Department of Education and preserve its federal funding.” She only had to look across town—to Xavier—to recognize the folly of that statement.

Beckwith also dismissed the accused students’ Title IX claim, with the usual reasoning that the UC system at most was biased against accused students, and even though (as she noted in another part of the opinion) accused students are almost always male, there’s no gender component here. She also could not “conceive of an argument” that UC’s (undisputed in the record) never having found a student not guilty under the current disciplinary system suggested constitutionally problematic conduct.

Judge Beckwith leaned heavily on a 2005 6^th Circuit case involving the University of Miami, which kicked out a medical school student—who was first charged for a felony drug offense and then pled guilty to a felony. The idea that public universities should be expected to give the same degree of due process to criminals as to students who were never charged with a criminal offense is bizarre.

Judge Beckwith’s conception of what constitutes “due process” is extraordinarily cramped. The students have appealed. Will the 6^th Circuit agree that “due process” means that accused students aren’t entitled to the presumption of innocence?

One of the most troubling developments of recent years–which Stuart Taylor and I first documented after the UVA case–is the emerging hostility of today’s college and university students to due process. (The recent reaction of mob-like student protesters at Yale in the Montague case is another example.) This is a breathtaking, and quite sudden, change: during the lacrosse case, the Duke student body was the voice of reason.

In this regard, it’s most encouraging to see that some students are now speaking out. Tufts student Jake Goldberg has organized a letter—currently co-signed by more than 250 undergraduates nationwide—opposing OCR’s 2016 demand for increased funding.

“We believe,” the Goldberg letter maintained, “that no further funding should be provided to this department until OCR revises its illegal and immoral guidance to our colleges and universities.” Citing events at the University of Montana, the letter chastised OCR for having “severely threatened” students’ rights to free speech. “Equally as important,” Goldberg and his fellow students maintained, the 2011 Dear Colleague letter “forced our schools to enact policies which effectively deny us of our due process rights when we are accused of violating sexual harassment policies and face disciplinary proceedings.” The student letter correctly pointed out that institutions “have responded to the mandates of OCR by establishing biased procedures with no regard to due process protections or a presumption of innocence”—and that “OCR’s guidance does not offer more security for those who genuinely need it.” In the end, the students concluded that “OCR’s guidance does nothing to protect our civil liberties; it destroys them.” The signatories promised that “we will not go away; we will no longer be silent; we will always be monitoring OCR’s actions. We as students will no longer tolerate unelected, unaccountable bureaucrats usurping our rights to free speech and due process.”

The letter, quite appropriately, has received considerable notice; its conclusions are sound, and I hope that more students sign on. In the end, only when students cease supporting (or simply tolerating) the deprivation of their rights will the current frenzy come to an end.

You can read the full letter below:

Jake Goldberg & Fellow Students

Prepared for the Subcommittee on Labor, Health and Human Services, and Education, and Related Agencies Department of Education

Dear Chairman Cochran, Vice Chairwoman Mikulski, Chairman Blunt and Ranking Member Murray:

I am writing on behalf of myself and my fellow students, whose names are listed below as a pledge of support, to express our strong disapproval for Senator Gillibrand and her colleagues’ request for $137.7 million in FY 2017 for the Office for Civil Rights of the U.S. Department of Education (OCR). We believe that no further funding should be provided to this department until OCR revises its illegal and immoral guidance to our colleges and universities.

Through its 2011 “Dear Colleague” letter (DCL), OCR has severely threatened students’ rights to free speech and due process on our college campuses. DCL fails to explicitly differentiate offensive speech from sexually harassing conduct. This was not always the case with OCR guidelines. In OCR’s 2001 Guidance, acceptance of the Supreme Court’s Davis v. Monroe delineation between free speech and sexual harassment was unequivocally stated. In 2003, OCR’s DCL once again clearly substantiated the separation between offensive expression and sexual harassment. However, these protections were lost with the issuance of the 2011 DCL, which lacked any substantial speech protective directives. This lack of safeguarding free speech enabled OCR’s 2013 Findings Letter with the University of Montana to further jeopardize our rights. This document created a broad definition of sexual harassment by defining it as unwelcome conduct of a sexual nature that does not have to be objectively offensive. Though expressed as non-binding, this definition has still been widely adopted by our campuses all across the country. By allowing vague and far-reaching restrictions on speech to be incorporated into sexual harassment policies, DCL’s directives have led to the deprivation of our constitutional and contractual rights to free speech and expression.

Equally as important is the fact that the mandates set forth in the 2011 DCL have forced our schools to enact policies which effectively deny us of our due process rights when we are accused of violating sexual harassment policies and face disciplinary proceedings. By mandating a preponderance of the evidence standard for vague and far-reaching sexual harassment codes, DCL promotes a standard of evidence that is inconsistent with the severity of alleged conduct. Colleges and universities have responded to the mandates of OCR by establishing biased procedures with no regard to due process protections or a presumption of innocence. There is no reason that sexual harassment cannot be adequately addressed and simultaneously provide all students involved with fair and balanced procedures.

We will never support codes that promote disciplinary proceedings with high risks of error, as such flawed proceedings serve the interests of neither party involved. We will never support overly broad definitions of threatening conduct, as such policies undermine those who truly suffer from deplorable acts of sexual misconduct, and result in innocent people being accused of serious violations. OCR’s guidance does not offer more security for those who genuinely need it. Its guidance allows for the punishing of those of us who hold thoughts and beliefs which others simply don’t wish to hear. Its guidance promotes biased, unfair procedures through illegal mandates that our schools are forced to adhere to. OCR’s guidance does nothing to protect our civil liberties; it destroys them. Let us be clear. Today our voices number in the hundreds, next month they will be in the thousands, and within a year we will number over a million. We will not go away; we will no longer be silent; we will always be monitoring OCR’s actions. We as students will no longer tolerate unelected, unaccountable bureaucrats usurping our rights to free speech and due process. We will not stop speaking out until our requests become our realities. Our generation has ideals and views that should rise to the stars, yet OCR’s actions leave us suffocating in the strict stripes of their red tape. For these reasons, we ask that you withhold funding for the Office for Civil Rights of the U.S. Department of Education until they change their guidelines to conform with constitutionally established principles of free speech and due process. We appreciate your consideration of this request.

Sincerely,