Below is my column in the Hill newspaper on the need for the Trump Administration to rescind the ill-conceived Obama order calling on universities to strip away due process rights of students accused of sexual harassment or assault.
Almost one year ago, Thomas Klocke, a student at the University of Texas in Arlington, took his own life. His suicide on June 2, 2016 was a tragedy that his parents insist did not have to happen.
The true culprit, they insist, was the university, which found Klocke guilty of sexual harassment without any semblance of due process. Regardless of the merits of the sexual harassment claim by a gay student, the case illustrates how universities have treated due process protections as themselves fostering abuse and shielding harassers.
Like the architect of the French “terrors,” Maximilien de Robespierre, who referred to “liberty’s despotism” without a hint of contradiction, our schools refer to protecting the rights of students from hostile environments by denying them rights to fair investigations and trials.
The facts of the case are likely to be laid bare in a lawsuit filed by Klocke’s parents. While the university has not been fully heard on the allegations and could be vindicated, there is ample reason for the university to be called to account for the treatment of Klocke. For those of us who have spent years criticizing the denial of due process rights to students on our college and university campuses, Klocke’s story is all too familiar.
Klocke’s case began after a gay student accused him of typing “gays should die” into the search bar of his browser during a classroom conversation about privilege on May 19, 2016. The alleged victim then said he typed into his own computer, “I’m gay,” and Klocke allegedly responded by calling him a “faggot” and that he should consider killing himself.
However, Klocke insisted that the gay student sat next to him and said that he was “beautiful.” Klocke then said that he typed into his web browser, “Stop, I’m straight.” He said that the gay student replied with “I’m gay” and then allegedly kept glancing at Klocke. Klocke said that he moved after the gay student kept looking at him.
In such a “he said, he said” situation, it would be very difficult to convict anyone absent a confession. However, the gay student went to Associate Vice President of Student Affairs Heather Snow. Snow, who is now a defendant, allegedly opted not to follow the school’s Title IX process, which itself lacks key protections but still affords some notice and other protections to the accused.
Instead, Snow reportedly helped the student draft a complaint and then assigned the case to the school’s associate director of academic integrity, Daniel Moore. Based solely on the allegations of the accuser, Klocke was barred from going to the class or contacting any member of the class (which would obviously include any witnesses that he could use in this defense). He could not even contact possible witnesses through third parties.
However, the accuser was allowed to continue in the class (and speak to other students and potential witnesses). Klocke was not told what he was being accused of when these restrictions were imposed on him. The school even barred his father, who is an attorney, from attending a meeting on his case. Moore then declared him guilty of harassment and he was placed on probation on May 25, 2016.
The finding would materially impact Moore’s record and would likely hinder both employment and graduate school. He went from an allegation on May 19 to a conviction on May 25. He killed himself roughly one week later.
Again, there is little evidence to prove what was typed on a computer screen unless it was observed by another student. Both men accused the other of inappropriate sexual comments. Yet, the complaint alleges that the school treated the accuser’s allegation as the “statement of evidence” while hindering the ability of Klocke to contact witnesses and present a meaningful defense.
It further charged him with “physical abuse” despite the fact that the accuser never made such a claim. Regardless of who was telling the truth, what is abundantly clear is that the University of Texas in Arlington denied Klocke basic due process protections in adjudicating his guilt.
Ironically, the university is accused of not even following the minimal standards laid out under Title IX. In 2011, the Obama administration muscled universities into stripping away basic protections for students in a push to increase convictions for sexual harassment and hostile environments.
This radical change did not come in legislation but a “Dear Colleague” letter from a largely unknown assistant secretary for civil rights at the Department of Education, Russlynn Ali. The administration threatened schools with the loss of federal funds if they refused to strip students and faculty of the protections. Ali told educators that, if education was to be “the great equalizer in America, schools would need to curtail due process protections on the right to representation, the standard of proof, and other basic rights.”
These rights included the right to confrontation, which the Obama administration said “may be traumatic or intimidating (for the victim), thereby possibly escalating or perpetuating a hostile environment.” If they did yield such rights, the letter warned, they could lose federal funding and face discrimination charges discrimination.
Schools fought the Obama administration in court, but judges insisted that the agency must be given sweeping deference. As a result, the Obama administration substituted honest efforts to investigate claims of sexual harassment with an approach that borders on a type of Vietnam body count culture, measuring success by the rate of conviction.
The Trump administration has indicated that it will rescind this controversial policy. Ironically, while most professors did not support President Trump and continue to oppose his various measures, this is one area where Trump would find many allies among many academics.
Universities caved to the threat of losing millions in federal funds and sacrificed the rights of our students. The result is perfectly Robespierrean. Being strong on due process does not mean being soft on sexual harassment.
It is time for a new “Dear Colleague” letter . . . or better yet, a law that protects schools from the loss of federal funds due to their affording due process protections to students or faculty.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.