Rescind The Obama Educational Policy: It Is Time To Restore The Due Process Rights Of Our Students

donald_trump_president-elect_portrait_croppedPresident_Barack_ObamaBelow 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.

Robespierre_cropLike 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.

89 thoughts on “Rescind The Obama Educational Policy: It Is Time To Restore The Due Process Rights Of Our Students

  1. I don’t understand why too many university officials and politicians continue to assume that university students are minors and treat them as such with regard to due process and other matters. Because one enrolls in college it does not mean that they are now second class Americans. But it is easier to take away rights from individuals than it is for government to decide to restore these.

    If anyone believes that government and bureaucrats view individual civil rights with capital importance they will be quickly frustrated in looking at how minors are treated by the law. They are second class citizens under the law because the courts have allowed them to have such a status and as a result, politicians and bureaucrats immediately denied minors various civil rights.

    We see the same depravation of rights at many universities using even more excuses to do so; whether it be due to the fact the college is private, or it receives funding from the government. The end result is less freedom and liberty. And sadly, many of these students are so eager to throw liberty away if it doesn’t comport with the politics that they have so blindly shackled themselves to.

    • I don’t understand why too many university officials and politicians continue to assume that university students are minors and treat them as such with regard to due process and other matters.

      The institutional policies are designed and implemented by committees of administrators who were no great shakes to begin with and by faculty who confound general intelligence with expertise. They’re not inclined to even consider (much less defer to) the skills of campus security, outside counsel, or the local police. They’re also addled by their own rancid social ideology and social prejudice and lack the character to defy certain vectors in institutional politics. Hence, you get these travesties which leave them exposed to civil liability.

    • You are right. I was a coal miner down in Kentucky and got treated like an immigrant when I visited my friends in Chicago at the University of Chicago. They kept asking me if I had a daughter. It went from there.

    • Darren, you’ve made a good point about the distinction between minor and adult students at public schools. I tend to think kids should have less procedural due process than adults (I don’t necessarily agree kids are reduced to second-class citizens as a result, though) when it comes to what’s in their school lockers and the emblazonry on their tee-shirts in terms of regulating children’s conduct.

      Thomas Klocke appears to be the prototypical subject matter for the Supreme Court’s ear. Still, I don’t know the “key protections” lacking in Title 9 about which Mr. Turley wrote.

      • Help me remember which article, and I will be glad to! Thanks for thinking about me. In the meantime, this may be the one you are thinking about, from an interview with a former KGB operative, Yuri Bezmenov, regarding “useful idiots”:

        Transcript:

        Ideological subversion is the process, which is legitimate, overt, and open; you can see it with your own eyes. All you have to do, all American mass media has to do, is to unplug their bananas from their ears, open up their eyes, and they can see it. There is no mystery. [It has] nothing to do with espionage. I know that espionage intelligence-gathering looks more romantic. It sells more deodorants through the advertising, probably. That’s why your Hollywood producers are so crazy about James Bond-type of thrillers.

        But in reality, the main emphasis of the KGB is not in the area of intelligence at all. According to my opinion and [the] opinion of many defectors of my caliber, only about 15% of time, money, and manpower [are] spent on espionage as such. The other 85% is a slow process, which we call either ‘ideological subversion,’ or ‘active measures’—‘[?]’ in the language of the KGB—or ‘psychological warfare.’ What it basically means is, to change the perception of reality, of every American, to such an extent that despite of the abundance of information, no one is able to come to sensible conclusions in the interests of defending themselves, their families, their community and their country.

        It’s a great brainwashing process, which goes very slow[ly] and is divided [into] four basic stages. The first one [is] demoralization; it takes from 15-20 years to demoralize a nation. Why that many years? Because this is the minimum number of years which [is required] to educate one generation of students in the country of your enemy, exposed to the ideology of the enemy. In other words, Marxist-Leninist ideology is being pumped into the soft heads of at least three generations of American students, without being challenged, or counter-balanced by the basic values of Americanism (American patriotism).

        The result? The result you can see. Most of the people who graduated in the sixties (drop-outs or half-baked intellectuals) are now occupying the positions of power in the government, civil service, business, mass media, [and the] educational system. You are stuck with them. You cannot get rid of them. They are contaminated; they are programmed to think and react to certain stimuli in a certain pattern. You cannot change their mind[s], even if you expose them to authentic information, even if you prove that white is white and black is black, you still cannot change the basic perception and the logic of behavior. In other words, these people… the process of demoralization is complete and irreversible. To [rid] society of these people, you need another twenty or fifteen years to educate a new generation of patriotically-minded and common sense people, who would be acting in favor and in the interests of United States society.

        Griffin: And yet these people who have been ‘programmed,’ and as you say [are] in place and who are favorable to an opening with the Soviet concept… these are the very people who would be marked for extermination in this country?

        Bezmenov: [deleted mat’l]

        The demoralization process in [the] United States is basically completed already. For the last 25 years… actually, it’s over-fulfilled because demoralization now reaches such areas where previously not even Comrade Andropov and all his experts would even dream of such a tremendous success. Most of it is done by Americans to Americans, thanks to [a] lack of moral standards.

        As I mentioned before, exposure to true information does not matter anymore. A person who was demoralized is unable to assess true information. The facts tell nothing to him. Even if I shower him with information, with authentic proof, with documents, with pictures; even if I take him by force to the Soviet Union and show him [a] concentration camp, he will refuse to believe it, until he [receives] a kick in his fan-bottom. When a military boot crashes his… then he will understand. But not before that. That’s the [tragedy] of the situation of demoralization.

        So basically America is stuck with demoralization and unless… even if you start right now, here, this minute, you start educating [a] new generation of American[s], it will still take you fifteen to twenty years to turn the tide of ideological perception of reality back to normalcy and patriotism.

        The next stage is destabilization. This time [the] subverter does not care about your ideas and the patterns of your consumption; whether you eat junk food and get fat and flabby doesn’t matter any more. This time—and it takes only from two to five years to destabilize a nation—what matters [are] essentials: economy, foreign relations, [and] defense systems. And you can see it quite clearly that in some areas, in such sensitive areas as defense and [the] economy, the influence of Marxist-Leninist ideas in [the] United States is absolutely fantastic. I could never believe it fourteen years ago when I landed in this part of the world that the process [would have gone] that fast.

        The next stage, of course, is crisis. It may take only up to six weeks to bring a country to the verge of crisis…

        http://russia-insider.com/en/must-see-video-ex-kbg-agent-exposes-process-cultural-marxist-subversion-west/ri16016

        Squeeky Fromm
        Girl Reporter

  2. Can the poor dear father of the deceased personally sue the school administrator, thus putting that evil person’s personal wealth at risk? I hope so.

    The easily avoidable pain and tragedy here is just awful.

    Score another point against Obama, as if he does not have 1000 strikes against him already. His mendacity knows few bounds.

  3. Checked out Everclear and UDUBYA lately? Your contention is unsupportable.

    However MOST students are 18 and old enough to be drafted and sent to war at the flick of a Presidential EO or Congressional vote. All are for some strange reason able to vote without proof of ID but using an on the spot unsupported affidavit. Welcome to the adult world if you think Universities are out of line try the real thing where elections can be bought on a whim by people who don’t live nor work in the voting district or geopolitical area involved.

    THAT right called Money is ‘Free Speech deprives at least five or six real Rights.

    By the way since iyou signed up for a student loan, voted, etc. welcome to jury duty and more. Time to put on your big boy/girl pants(ies) and face the music.

    Obama not around to pay off your debts anymore.

  4. Sexual harassment was the flavor of the year(s) under the Obama administration. Hopefully, Trump will restore rights back to accused students. Dreyfuss got a fairer trial than a student under the current rules.

  5. ” 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.”

    A government official stated the purpose of a policy was to deny rights and conspired to infringe on due process? How is she not rotting in jail?

  6. Part of the Fourth Branch of Government, deeply embedded in the Deep State? Answer? Just cut off funding in the next budget request and let Congress explain why 800,000 unecessary employees are sucking up tax dollars instead of getting honest jobs.

  7. The administration and faculty of Harvard Law should be hanging themselves! Their former “Professor of Constitutional Law” has brought everlasting shame on their institution and condemned this country to years of social chaos. And their rationale makes no sense: If education is the “great equalizer,” how can it be constitutional to deprive one person of it, based solely on the allegation of another? They also conveniently ignore the real harm done to this boy when the institution that binds him to his peers openly condemns and excludes him. It’s a medieval shunning! If he were my son, I would do much more than just file a lawsuit, believe me.

    • Obama was a lecturer at the University of Chicago. He never taught at Harvard and never held a f/t faculty position anywhere.

  8. One element that is omitted here and that might be related if not directly then indirectly, is the practice of universities’ ‘handling’ rape, sexual assault, and other like alleged crimes. It happens on a more than occasional basis that someone involved in a sexual assault, rape, or other alleged crime is dealt with by the university which brings to the table of decision issues revolving around the status of the university, the relationship of an alleged perp and one of the sports teams, etc. Obama’s move was heavy handed, ill thought out, and only a gesture, but one must ask if the distance from the optimum solution of this problem is further from or closer to the center where a resolution exists that would both serve the alleged victims as well as maintain the elegance of the ‘rights’, laws, etc.

  9. To whom it may concern;

    I am wanting to sue Hearst Corporation (WXII-TV) for years of fraudulent news reporting.

    Are you interested in the case? Know anyone interested?
    Surely there are some courageous, patriotic lawyers somewhere.

    Winston-Salem, NC: WXII-TV is an Accomplice to the Zionist Controlled Hearst Corporation War Crimes.
    WXII-TV is complicit in Cover-up & Propaganda for many years in the murders of the illegal U.S. / Israeli Wars & 9/11.
    The most powerful form of lie is the omission — George Orwell
    The Hearst Corporation (WXII) Lies in Omission of Truth
    According to U.S. and International Law all the U.S. / Israeli invasions are Wars of Aggression, War Crimes.
    These are the same crimes the Nazis committed
    Millions have been murdered & maimed due to these invasions
    Washington, DC = Nazi Berlin
    The Local and National Media are Zionist Liars
    The Hearst Corporation (WXII) have committed War Crimes. They do not deserve to be called journalists.
    They are War Criminals as chief propagandist for the Nazis, Joseph Goebbels.

    http://BuenaVistaMall.com/HearstCorp.html

    I have much evidence on this website;
    http://BuenaVistaMall.com

    Thank you for your consideration.

    Danny Vestal
    336-727-3765

  10. “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.””

    If ever an argument could be made to get the federal government out of the education business, this would be a good place to start. Why is the DoEd allowed to bludgeon states into submission in the first place? And to violate due process rights of the students or else lose federal funding? WTF? Eliminate federal funding of the schools, period. Return the funds to the states.

    • Why is the DoEd allowed to bludgeon states into submission in the first place?

      Because that’s what the higher ed apparatichiks want to do anyway. Federal advisories and sanctions are a tool they use to defeat institutional dissidents resisting these abuses.

  11. It will be.interesting to see if it happens. Side note: wasn’t the argument that withholding fed money for sanctuary cities is not a viable tactic but was done here?
    I still consider some college aged students fragile and not completely mature adults.

    • Side note: wasn’t the argument that withholding fed money for sanctuary cities is not a viable tactic but was done here?

      Suggest re the sanctuary cities, the response would be try-every-door-noncompliance and lawfare. With the schools, the ‘Dear Colleague’ letter was an excuse to do something they were inclined to do anyway.

  12. Due process, schmoo process. More straight, white, male mythology (like objective proof) to keep the marginalized down. Who cares if they lie about the charges? They oughta after years of oppression. We need to feel their pain and punish the privileged! It’s a brave new world out there, Horatio — and a brief one.

  13. It’s like liberals learned nothing from the Duke Lacrosse debacle. LOL! Liberals think those entitled w/m’s should have gone to prison anyway, they hired black strippers. In their minds, that’s a felony.

    • That was evident at the time. Only one person who signed the Group of 88 letter ever explicitly repudiated it. Those signing the Group of 88 letter and the non-mea-culpa letter outnumbered those who signed the letter welcoming the three students back to campus by a margin of 120 to 70. Richard Brodhead remained in office. Robert Steele and the other hollow men among Duke’s trustees defended him. Prominent faculty blowhards received promotions to gatekeeper positions and at least one was hired away by Vanderbilt with a handsome package. The place is pretty much rotten to the core. That’s the contribution William Chafe and Nannerl Keohane have made to higher education.

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