Below is my column on the decision of Education Secretary Betsy DeVos to rescind the highly controversial “Dear Colleague letter” of the Obama Administration. The letter, which made sweeping changes to educational policy, was never put through any notice and comment period under the Administrative Procedure Act (APA). At the time, schools and faculty objected to the stripping of basic due process protections from our students. However, politicians are now denouncing those who want to restore due process as soft on sexual abuse.
One of those denouncing DeVos is Texas lawyer and adjunct law professor Rob Ranco who said that he would be fine with DeVos being sexually assaulted. Ranco has now resigned from his law firm, the Carson Law Firm, after apologizing for his public statement. Ranco is reportedly an adjunct professor of paralegal studies at Austin Community College.
I have long criticized the erosion of due process rights on our campuses, particularly the unilateral action taken by the Obama Administration.
Here is the column:
The recent announcement by U.S. Education Secretary Betsy DeVos on handling sexual misconduct claims on college campuses led to a chorus of vitriolic and at times vicious attacks. Advocate Annie Clark denounced it as “a blatant attack on the civil rights of survivors.” The group Know Your IX declared that DeVos was against equality on campuses and was actively seeking to “help abusers and rapists.”
Texas lawyer Rob Ranco put it more bluntly. He proclaimed on social media that he would “be okay” if DeVos was sexually assaulted. From these comments, it would be easy to conclude that DeVos was bringing back coverture and chattel laws to our campuses. Instead, she was calling for comments on restoring minimal rules of due process for the investigation of sexual misconduct. Nevertheless, politicians and advocates have lined up to fight such “inequitable” and intolerable rules as protecting the right to counsel or allowing for a full opportunity to respond to evidence.
During the Obama administration, I was one of the academics who publicly criticized the “Dear Colleague” letter of Russlynn Ali, then assistant secretary for civil rights at the U.S. Department of Education under President Obama. Ali informed schools that they had to either strip their students and staff of due process protections or face the crippling loss of federal funding. Notably, Ali never submitted this massive policy change for “notice and comment” compliance under the Administrative Procedure Act.
The Obama administration demanded the reduction of the standard to a mere “preponderance of the evidence,” or just slightly above a 50-50 determination. Since these disputes are often a “he said, she said” dispute, that means that a conviction can be based on the accuser’s account with even the slightest additional support.
The Obama administration also sought to deny the accuser the right to question the accuser. Ali insisted that this right “may be traumatic or intimidating (for the victim), thereby possibly escalating or perpetuating a hostile environment.” After all, many have argued that most allegations of abuse have been found credible, so why put the accuser through such a traumatic stage of a hearing? Notably, the Supreme Court stated in 2004 that “dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty.”
Courts have repeatedly ruled against universities and colleges for denying students due process in proceedings structured to guarantee conviction. Dozens of such cases have been filed and many shock the conscience in their open disregard for any semblance of a fair hearing. In some of these cases, not only was the accused denied an opportunity to question the accuser but also key witnesses.
In one of the most recent decisions, a court ruled against the Miami University in Ohio after finding glaring due process violations in the case of an anonymous student known as “John Nokes.” Part of the decision addresses an increasingly common practice under the new rules of treating any drinking as negating any defense of consent under university intoxication rules. While both students drank before their sexual encounter, and Nokes insisted that the women was not inebriated, Ethics Director Susan Vaughn, who headed the hearing, told Nokes that there is no threshold amount for a finding of intoxication, and thus, a lack of consent.
The court also found that Nokes was never given fair notice that he was charged with assaulting an incapacitated student. Likewise, three key witnesses never showed up for the hearing but Vaughn insisted that she must “take this as fact. That is all true.” The university insisted that Nokes did not need the witnesses to tell his story. U.S. District Judge Michael Barrett simply noted that the university officials “miss the point of cross examination” and that their “claim that no amount of cross-examination could have changed the minds of the hearing panel members arguably undercuts the fairness of the hearing Plaintiff received.”
Nevertheless, advocates like Amy Siskind of The New Agenda have demanded to know why DeVos was “taking away Title IX protections for college women.” In reality, these were not Title IV protections, but demands in a letter without any Administrative Procedure Act compliance. That was a view echoed by over two dozen Harvard professors who denounced “procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”
For civil libertarians, the effort to paint those favoring due process as favoring criminals is all too familiar. Rather than being accused of being “soft on crime,” critics now charge that DeVos and others are “soft on sexual abuse” by wanting basic due process rules. In reality, we can have both due process and full protection for our students. We need to maintain safe environments as well as responsive procedures to encourage victims to come forward. However, the Obama administration sought to achieve the appearance of success through a pretense of process. It associated fundamental rights with unsafe environments. Stripping rights will not bring real safety any more than rigging outcomes will bring real justice for our students.