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. This post reminds me of the “withholding tax”. By paying a calculated sum incrementally throughout the year, the taxpaying citizen rarely stops to consider what exactly they are getting by lending the federal government money at zero percent interest. Then, when we discover we have overpaid and are due a refund, we celebrate getting our overpaid amount back. If people instead had to write a check quarterly or even annually (preferably in October before election day), then perhaps they would actually consider ALL of the ways our federal government spends the money we provide.

  2. Universities should not be trying cases in a kangaroo court. They should not be handling anything that is a crime. If someone makes a complaint that another student has physically attacked them, they should be told to report it to the police and let them take it from there. Of course they could offer students assistance in reporting the incident, but the universities are more concerned about maintaining their “safe spaces” than they are about due process. After an investigation by appropriate authorities, the university could decide what steps they should take with regard to the student or students.

  3. Change the rules??? But how are we going to get women’s votes for the Democrats unless we convince them that they are victims??? We have to keep the “guilty until proven innocent” paradigm, or who knows what’s next??? Maybe even Black Lives Matter will be called into question, as if there is any doubt that white cops are genociding black males!!!

    Squeeky Fromm
    Girl Reporter

    • Obama has caused so much pain and so much harm to the legal citizens of this country and all his supporters have blood on their hands ! Democrat party deserves to be replaced by half way decent human beings !

  4. Taking allegations seriously means exactly that–take them seriously. Do a real investigation. Find out what actually happened and take action based on all information. Making up assault charges is beyond the pale. What is the purpose of this? It seems like the school was just finding someone to blame and punish so the whole thing is over, not for the alleged victim, but for the school. We don’t know if this cause the other man’s suicide but if it did, what a terrible consequence of such shoddy, unprofessional actions. Yes, due process needs to be restored at educational institutions.

    • Jill, here’s the problem…the University does not legally have the power tools of crime investigation….obtaining search warrants, entering private dwellings to gather evidence, subpoenaing witnesses, searching NCIS databases, etc.

      These processes and powers are given exclusively to law enforcement, and rigorous controls are placed on these investigative methods to prevent abuses. Also, public law enforcement agencies are not conflicted by having to sell services, so they are fairly immune to market pressures that could compromise investigations.

      Universities really have no standing to act in place of law enforcement when it comes to felonies.

      However, Universities can erect codes of conduct, such as a safe-drinking standard, and de-register individuals from the University who provably violate the standard. If I were a University President, that is the direction I’d be going. Almost all the sexual misconduct on campus is fueled by alcohol overconsumption.

      • I don’t know that a local law enforcement agency is the proper vehicle. (Buford T. Justice is going to prevent a Heisman-award winning quarterback from playing in the national championship game?)

        Clear and convincing evidence or perhaps even a preponderance of the evidence decided competently under some regulatory guideline should be good enough to expel a student for conduct which doesn’t amount to a crime, and harassment should be the basis for expulsion after fair notice from the victimized student, not just the school, that such conduct won’t be tolerated.

        • These are sexual assault cases. Sexual assault is a crime. Buford T. Justice is without a doubt more conscientious, professional, and trustworthy than Steve Groen.

          • I missed the part in the original post where Thomas Klocke sexually assaulted the gay student. Could you provide that for me? I don’t see it. Otherwise, this would seem to be a civil matter, not a criminal matter.

            If it’s civil harassment which has been alleged, a civil court will issue restraining orders on less proof than that beyond a reasonable doubt. If a civil restraining order issues, it should be good enough per se to expel the restrained student.

            However, an administrative agency could serve that purpose in a more competent and streamlined manner because its scope would be specific to that end as opposed to a more broadly-based civil court. It would also ease judicial backlog. Unless a crime has been committed, I think this could be handled administratively.

            • Again, these discussions concern sexual assault claims. The case you’re referring to is something different, and concerns contrived institutional solicitude toward Big Gay. The incident in question would not have been accorded 2 minutes of any administrator’s time were not the complainer derived from the most-favored-mascot-group.

        • “I don’t know that a local law enforcement agency is the proper vehicle.”
          *********************

          We trust local cops to investigate murder, armed robbery, white collar crime, drug trafficking, be the first responders to terrorist attacks, and help save people in national disasters, but god forbid they investigate some college kid accused of feeling up his girlfriend. I feel for Steve’s clients who rely on his judgment.

      • pb,

        Do you know about campus police powers? I don’t. (Darren may know.) It seems like they have law enforcement capacity. If that is true, I agree it would be better to let the city police deal with felony crimes on campus. As you point out, there is a conflict of interest on the school’s part.

        I don’t think there was a felony in this case. Assault was alleged by the school but not by either student. I think the codes of conduct could reasonably be enforced by a University. The basic point would still have to stand– that the university should actually do a real investigation of any complaint, even if it is a conduct violation complaint.

        I think JT is arguing that due process for students is their right. That right doesn’t seem to have been respected here.

        • Campus security can be deputized in New York if they’ve had the requisite training. It’s more for order maintenance functions than investigatory functions.

  5. This is shameful. Why didn’t this make more noise at the time? Our Obama devoted MSM? Jeesh, when stuff like this comes out, it’s hard not to sympathize with those who make gross generalizations about the left. Except, of course, for the fact that Obama – lover of all things Regan, with special emphasis on all things neoliberal – was anything but left.

    • +1

      And then there was the successful . . . what was it called . . . No Child Left Behind, but I can’t remember which Congress and President put that one together, along with educzar Betsy Devros, billionaire sister to billionaire Erik “All Blackwater Employees Must Swear Allegiance to Me” Prince, now bent on taking the public out of public education.

      And everything’s right with the world.

  6. This sad chapter in government and university relations demonstrates something I have been pointing out recently. Our system of justice is founded on the notion of a neutral process manager (referee, judge) presiding over conflicts. This is wholly rejected by social justice warriors, for whom there can be no neutrality. You’re either with them, or against them. Under this belief system, the ends justifies the means, and there is no process that should take up a neutral mediator role. All power to “our side”. The mindset is naively idealistic — how soon the biased wheels of justice can turn on the innocent. Facts don’t matter, only allegiance to “the cause”. The Reign of Terror following the French Revolution is a perfect historical moral lesson for those flirting with distrust of due process.

  7. I think this generation’s legacy will be “good intentions with disasterous consequences.”

    First of all, I have been told I should die because I’m a conservative on numerous occasions in my lifetime. I’ve been told I’m going to hell many times because I was raised Catholic. I’m still perfectly content with my life. I neither sued nor allowed such ignorant statements to inflict lasting anguish. There are rude people in this world who can take any cause, including politics, to extremes. This is reality. And if you plan to inhabit the plane of reality then you must learn to navigate such obstacles calmly.

    I am in no position to judge who of the two students were telling the truth, and neither was the university. That is why our hard won freedoms, including that of due process, are critical. The university handled this poorly and made a grave injustice in stripping the rights of its students. I hope a lawsuit sets them down hard.

      • “Only ignorance! only ignorance! how can you talk about only ignorance? Don’t you know that it is the worst thing in the world, next to wickedness? — and which does the most mischief heaven only knows. If people can say, `Oh! I did not know, I did not mean any harm,’ they think it is all right.””

        Anna Sewell, Black Beauty

        • “Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.”

          George Washington, Farewell Address

        • Karen – Black Beauty is a decent YA novel best read by pre-pubescent girls. It is not one to take advice from. 🙂 Even about horses.

          • The author wasn’t a groom. She was a terminal ill young woman writing her one and only story before she died. Yes, I know about the water.

            But I always thought she rather understood mares. And even today I’ve seen some irritatingly tight check reins on hitch teams. The novel also has relevance for the downward slide most horses ride from the vigor of youth bravely and honestly carrying teenage girls over fences to the arthritic older gelding on the slaughter truck to Canada.

  8. This video, overwhelmingly, proves that the government and media are lying to us about 9/11.

    Christopher Bollyn: “If the government and media are lying to us about 9/11, it means they are controlled by the same people who carried out 9/11”

    “9/11 WAS AN INSIDE JOB”
    2854 Architects and Engineers are telling us the U.S. Government is Lying about 9/11.
    The U.S. Government & Media are complicit in the murders of 9/11.
    3 NYC SKYSCRAPERS WERE DESTROYED BY CONTROLLED DEMOLITION ON 9/11.
    Our enemy does not want you to know about the 3rd building, WTC 7. It was not hit by a plane.
    This issue exposes the wide and deep corruption of the governments, courts and media.

    • I cowrote a peer reviewed paper on the collapse of WTC 1 & 2. The towers fell solely because of damage caused by airplanes running into the sides.

      WTC fell because it was compromised by large portions of WTC 1 falling on it. This ignited the diesel illegally stored in the building. The fires could not be fought because the collapse of WTC 1 damaged the water mains.

      Could we now return to rationality and the topic?

        • Nevermind. I googled it. But I still question a steel building collapsing due solely to fire fueled by furnishings. Never happened before or since. Governments deceive people. It’s part of what they do.

          • Bob,..
            We had never had large jetliners flying at c.500-600 MPH smash into skyscrapers, so there’s not a lot of precendent or comparable incidents.
            The fires were fueled by the c10,000 gallons of jet fuel the planes carried.
            Those fireballs when the planes hit kicked off the fire, but only a fraction of the burning jet fuel was “burned up” immediately.
            Paperwork, furnishings, drywall, carpets, etc. were ignited, but the fires were not solely fueled by these materials.

              • Thanks for clarifying that, Bob.
                I didn’t look very closely at the diesel fuel storage aspect of the fires, in any of the buildings.
                There seemed to be a substantial amount in WTC 1&2, as well as #7.
                I don’t know of a practical alternative for supplying the fuel for backup generators..
                there may have been some code changes after 9-11.

              • Steve G below, That would be my question for Mr. Benson as well….if fires burning for hours softened the steel and weakened the structural integrity of the building, what is the explanation for the building collapsing evenly into its own footprint? (I’m curious to know since we have Mr. Benson here who has cowritten a paper on the subject)….

          • It’s counter-intuitive that building 7 would have collapsed symmetrically due to fire. A fire would not have melted the steel structure at the same rate at all major stress points. One would think failure occurred at one or more of those stress points before the others causing to the building to fall at some perhaps minute but discernible angle. In a controlled demolition, I’d guess the placement of explosives is symmetric for that reason.

            Mr. Benson, do you know how explosives are placed in a controlled demolition?

            • You’re a low-rent lawyer now branching out into structural engineering?

              The twoofers fancy Larry Silverstein is the mother of all Bond villains.

                • Patriot is an errant nut whose hobby is babbling about the Jews.

                  The 9/11 twoofer thesis was promoted by a mess of amateurs and has long since been debunked by the National Institute on Standards and Technology and by Implosion World, among others. One of the conspiracy fetishists who populate these boards found a structural engineer in Alaska who took an interest in this crud, but that’s about it. It was always a wildly implausible thesis to begin with, but it looks quite normal to people who keep a stock of funhouse mirrors with which to look at the world.

                  • No, it’s not an ‘angle to be looked at’. Osama bin Laden was a renegade at war with the Saudi Government and repudiated by his own family. The Saudi government has always followed a bland interests-over-values foreign policy and gained precisely nothing from murdering the staff of Cantor-Fitzgerald.

  9. Yes, Obama killed so many in this country by trying to bring healthcare for all. Just like those socialist countries like Britain with the cheapest care & highest service it’s terrible we can’t even be more disrespectful to our population & outright ban any access to hospitals. Die in the streets, that’s what I say. How dare people ask to see a doctor unless they’re dying and don’t get me going on emergency services which is really the out patients service. F’in socialism, that’s what it is. Morans.
    And the WTC fell from alien heat rays, heard it on Alex Jones.

    • “Up to 60,000 patients on the Liverpool Care Pathway die each year” as medical treatment is withheld.- Daily Mail, Dec. 30, 2012
      They are left in the dark with respect to potential treatment options.
      Yeah, British national healthcare is a model for all.
      Your comment that Britain has “the cheapest healthcare” is truer than you realize.

      • There are about 600,000 deaths in the United Kingdom in a typical year. You fancy 10% of the deaths in Britain every year are attributable to this one thing?

        • DSS….I don’t know what percentage of the patients sent on “death’s quiet pathway” had treatable conditions that would keep them alive.
          I do know that when health care providers……in this case, the servants of the NHS…..refuse to discuss potential treatment options and withhold treatment, money can be saved to the system by “helping things along”.
          Providing financial incentives to hospitals who arbitrarily decide to cut off treatment and/or withhold hydration, conceal potential treatment options, administer toxic cocktails to ” ease suffering” ( and contribute to/ speed up the arrival of the Grim Reaper) are all money-savers.
          Doing away with informed consent has definate cost advantages.
          An even more cost- efficient measure would be to simply withhold all treatment in all cases involving the oldest and sickest patients.
          A lot of them probably don’t have a lot of time left in any case; statistically, knocking a few years off the lives of these patients wouldn’t do much damage to “overall outcomes” data.

      • Mespo….
        – I think they are people who believed that ObamaCare would save the average family $2500 a year.
        And those who believed Bernie’s claim that “Medicare for all” would save the average family $3500-$5000 a year.
        “Moran” call also be used to describe a class of voters Jonathan Gruber relied on to sell Obamacare.
        It is a variation of “moron”, but is altered somewhat to avoid being too transparent.
        A lack of transparency is another cornerstone of Gruberesq salemanship.

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