Opinion – Op-Ed

by Chandler Thornton, 10/25/2020

Conservatives greeted the nomination of Judge Amy Coney Barrett to the Supreme Court with enthusiasm for her originalist interpretation of the law, but all students who care about civil liberties, regardless of political persuasion, should welcome her nomination for the decidedly positive effect it will have in restoring sanity on America’s college campuses.

Over the last several decades, liberals on college campuses have enacted racial preferences in admissions, clamped down on the free speech rights of campus conservatives, imposed strict ideological tests on students, and eliminated any pretense of due process for students unfairly accused of sexual assault.

In particular, under President Obama, universities were provided guidance in 2011 and 2014 that led to the creation of “kangaroo courts,” where students facing sexual misconduct charges were punished without being afforded a hearing or the right to cross-examine their accuser. This led to a wave of cases that were invalidated by courts nationwide.

Last year, Judge Barrett authored a unanimous opinion for the U.S. Court of Appeals for the Seventh Circuit that restored the rights of a student, named “John Doe,” who alleged his university violated both the Due Process Clause of the Fourteenth Amendment and Title IX when investigating and adjudicating an allegation of sexual misconduct brought forward by another student, referred to as “Jane Doe.”

In her ruling in Doe v. Purdue University, Judge Barrett said Purdue’s procedures fell far short of fair, just and impartial treatment.

“John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. Withholding the evidence on which it relied in adjudicating his guilt was sufficient to render the process fundamentally unfair,” Barrett wrote.

Judge Barrett went on to cite some of the problems with Purdue’s grossly unfair rush to judgment.

“At John’s meeting with the Advisory Committee, two of the three panel members candidly admitted that they had not read the investigative report, which suggests that they decided that John was guilty based on the accusation rather than the evidence. And in a case that boiled down to a ‘he said/she said,’ it is particularly concerning that … the committee concluded that Jane was the more credible witness — in fact, that she was credible at all — without ever speaking to her in person. Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement,” Barrett noted.

A shift to a more originalist-minded Supreme Court is coming at a time when the spotlight is on higher education, as race-based admissions and the stifling of campus free speech have become controversial flash points.

While Judge Barrett’s views on campus free speech and racial preferences are less documented, she drew clear lines between herself and the late Justice Antonin Scalia, who consistently voted against race-conscious admissions and was an outspoken defender of free speech.

At the Rose Garden ceremony where President Trump announced her nomination, Barrett said, “I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine, too.”

Understanding the importance of applying the law as written, guided by the original intent of the authors, and careful not to inject one’s own personal views or subjective policy opinions, was a hallmark of Scalia’s judicial philosophy.

That Judge Barrett will take the same approach is a relief for those of us looking forward to the day when common sense and fair play return to college campuses.

Chandler Thornton is the national chairman of the College Republican National Committee.