RESTORING DUE PROCESS ON OUR CAMPUSES

440px-Betsy_DeVos_official_portrait

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 more cases and more expulsions from colleges. While saying that the curtailing of rights would make it easier for women to allege assaults, it was clearly making it easier to find guilt. For example, before the change, universities generally applied standards of proof requiring a “clear preponderance” or “clear and convincing evidence.” While not as demanding as “beyond a reasonable doubt,” the standard assured that a student would not be expelled for a sexual assault without a solid evidentiary record.

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.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

67 thoughts on “RESTORING DUE PROCESS ON OUR CAMPUSES

  1. Education is local.

    Education is the purview and function of individual, local parents.

    Local school districts are the only necessary “layer” of education.

    Radical, activist, global redistributionists have appropriated the American education system for the purpose of forcing collectivist, liberal brainwashing, indoctrination and propaganda on American children.

    There is no constitutional mandate or authority for the Dept. of Education.

    There is no constitutional mandate or authority for teacher or public worker unions.

    Both are usurpation of the power of locally elected officials, corruption and profiteering.

    Close the Dept. of Education.

    Decertify all public worker unions.

  2. Please remember the Duke Lacrosse team. That was before the Obama edict and not a campus kangaroo court. That was DA Mike Nifong’s kangaroo court w/ the cheering from Duke Administration, professors, and the MSM.

  3. I worked for a prosecutors office as an investigator in the late 70’s/early80’s. It was a HORRIBLE climate for sexual assault victims. PC and liberal politics swung the pendulum the other way. That is HORRIBLE, DANGEROUS, and UNCONSTITUTIONAL. Great piece JT.

    • That’s true, Nick. The pendulum didn’t fall towards justice; it swung too far the other direction. Now, if we could just get it right…

  4. The District Attorney
    By Leslye Davis | Jul. 12, 2014 | 0:51

    R. Michael Tantillo, the Ontario County district attorney, discusses the ideal process for dealing with sexual assault.

    • Campus authorities should not be handling these (and other felony) cases. They should immediately be turned over to local law enforcement.

  5. So, is our criminal justice system soft on sexual predators because there is due process? Is it morally wrong to require more than an accusation?

    Obviously, if all that is required is an accusation, there is going to be abuse of the system. That’s why we have pesky things like courts, juries, attorneys, and laws.

    Male students could just as easily retaliate and create false accusations against female students for getting them drunk and having sex with them without consent. Without due process, this could very easily devolve into a very unsafe environment of tit for tat. Plus, there is an incentive for secretly recording encounters as a protection against false accusation later. Maybe those who support the loss of due process should think about unintended consequences, and why those rights were formed in the first place.

  6. Don’t we have enough real problems in our world that need attention, rather than making up crap distortions of what Trump, DeVos, Sarah Sanders, etc say and turning it into fake issues?

    • Except for the work of a few wonks like Harold Pollack, ‘progressive’ politics largely consists of that. Complete humbug all of it.

    • Well, the Left lost on the federal, state, and local level. They need a platform. They need something to rally voters. The tried and true method is to claim that everyone on the right is a bigot, racist, rapist, etc.

      So they continually use false logic to make the premise that they are avenging angels standing for all that is good, and the right are all Satanists standing for evil.

      You know, the good old reasoning where if the Neo Nazis stand for free speech, and conservatives stand for free speech, ergo, conservatives support Neo Nazis. Sure, they know it’s bananas, but all that matters is the vote generation. Who cares if it makes no sense? This kind of reasoning has become instinctive at this point.

  7. Radical feminist ideology blinded the Obama administration to the way to solve the campus sexual misconduct problem: better socialization of young teens about how to manage sexual instincts, and promoting a safe-drinking standard and culture (dose not to exceed 0.06 BAC). To illustrate how confused the rad-fems are about this issue, they believe that a woman should only have to take responsibility for her sober self, not her drunk self. That is, whatever bad judgment, hedonistic tendencies and obnoxious, lascivious behavior made by the drunk self, that is not the woman’s responsibility, but should be pinned on a man in her company. In this fashion, the rad-libs are totally undermining female empowerment and agency.

    • Interesting point you make. Strange how the same folks who consider different statistical distributions between men and women in anything (as Google so aptly demonstrated) as prima facia evidence of systemic bias also argue that women lack agency in their social relations.

      • Women lack agency so long as a delict or penalty is attached to the result of whatever they did. In that case, some man is responsible.

    • This reasoning has always bothered me – that if two people get blind drunk, have sex, and then regret it later, it is solely the responsibility, and the guilt, of the man. Now, the man may have sincerely regretted sleeping with her later, too. Why isn’t the woman found equally guilty of the encounter since neither one of them were capable of consent? What if a woman and a man get drunk, have sex, and the woman does not tell him that she has an STD? What if she gives him an STD in her failure to disclose? Did she assault him? What if she was so drunk that she told him she was on birth control but forgot that she’s not? Is that an assault?

      I have always felt that women and men should be treated equally. If one partner is drunk and the other is not, then it is the fault of the sober one, man or woman, who should have known the other to be incapable of consent. But if both are drunk, it’s a wash. It is also all of our responsibility not to get drunk when we are out, or on a date with someone we don’t know well. Why in the world would you incapacitate yourself and trust your safety to a stranger, or fate? Getting drunk lowers inhibitions, both the woman’s and the guy she’s with. If her inhibitions were lowered enough that she wanted to have sex with him, then why is he to blame if his own inhibitions were lowered enough that he willingly participated? Why is that his fault and not both of theirs?

      When I started college, my roommate joined a sorority. She shared the 3 rules with me – Don’t drink the punch, don’t get separated from your group or go solo, and never agree to look at a fish tank. The punch is spiked but since you can’t taste the alcohol, it’s difficult to gauge how much you’ve drunk. The group looks out for each other and puts the brakes on anyone drinking too much or wandering off. And the fish tanks are all upstairs at the frat houses. Who knows if there even are fish tanks at all? It’s just common sense that everyone should learn. Men have their own rules on getting through a night in one piece, too.

  8. I wonder if Isaac counseled Russlyn “Ali” Re. Ali’s letter which started this whole ball rolling.

    I also wonder to what extent Ali’s and Jesus Obama’s letter mimics Sharia Law, but with a twist. In Sharia Law, a woman might be stoned to death for showing an ankle. In Jesus Obama’s reverse legal ruling, men are denied their legal right to an education and their future lives destroyed with “sexual predator” tattooed across their forehead, for the “crime” of having sex with a woman who wakes up the next morning and changes her mind about consent after the fact.

    Moar salvation from Jesus Obama!

  9. Great graf, and the SCOTUS quote spot-on, but do we have an error in the first sentence? Accused, not accuser, in first use of the noun in the first sentence, no?

    “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.””

    • Also, Title IX, but then Title IV (financial aid for students) in 10th graf of the article. I’m confused.

      “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.”

    • Dude, you’re new here. Take a drink and relax. Our beloved and intrepid Professor works about 18 hours a day fighting the good fight. As he has posted many times, he types, and posts, and leaves it to us mere mortals to interpret as needed. If you don’t like it, stop reading, it’s not getting better, and those who enjoy his musings are happy to take what we can get.

      If you find a better legal blog, let us know, but we won’t hold our breath.

  10. Both academe and the legal profession are adept at try-every-door non-compliance when they do not want to do something – e.g. ending racial preference schemes at the instruction of a state’s electorate. This shizzy extra-legal instruction from the Department of Education was effective because …. that’s what the officials in question wish to do.

    What’s interesting in these cases is why the student affairs apparat wishes to abuse male students in this way, why institutional legal counsel does not stop them or cannot stop them from so doing, and why faculty participate in these travesties. What’s notable about most of the cases which make the papers is that officialdom had to go out of their way to behave this badly; the building custodians applying rough-and-ready common sense would not have handled these cases as badly.

    Prof. Turley is being all collegial and not acknowledging the problem: higher education is chock-a-block with people who adhere to vicious and stupid social ideologies. They think very well of themselves, but in truth they shouldn’t be able to make discretionary decisions about a Chia pet, much less about a live human being to whom the institution owes contractual obligations. (A solo-practice lawyer I correspond with told me that higher ed officialdom often do not realize that their disciplinary manuals incorporate legal obligations binding on them. Just where is their legal counsel in all of this, or their common sense?).

    • “…. that’s what the officials in question wish to do.”

      Well, their protective cover has been ripped away, and prior to DeVos’ action, legal settlements like the one Paul Nungesser got Columbia to pay (due to the harassment he suffered because of Mattress Girl) should have been adequate deterrent.

  11. I am glad this is happening. Male students have been railroaded out of school. And just as unusual, if the girl cannot give consent, then the boy cannot give it either, if they have both been drinking. And let us not forget the Duke lacrosse team.

  12. Darren Smith, thanks, but I was referring to university administrative proceedings. Very few women are willing to press charges and only a few have used the university’s procedures.

    What Washington State University has done, with success , is make it clear to all incoming students that “only yes means yes”. Reported rapes are now nonexistent.

    • There are about 90,000 forcible rapes reported in the United States every year. The bourgeois types who attend college and send their children to college have their vices as human beings, but an inclination to engage in violent crime is seldom one. It’s not terribly surprising that there are not many rapes on college campuses. There aren’t many in the suburban loci from which these youngsters hail.

        • The Bureau of Justice Statistics, which makes use of survey research rather than collating police reports, reports that the frequency with which college-age women who are registered students report being molested has been declining for twenty years and currently stands at 4.5 per 1,000. They classify these incidents as ‘threats’, ‘sexual assaults’, ‘attempted rape’, and ‘rape’. ‘Rape’ and ‘attempted rape’ make up 58% of the total, so the frequency of that is 2.6 per 1,000. Positing one is a registered student for 4 years and change, the probability one will be the subject of rape or attempted rape in college would be ~1.12% at current frequencies. Many of the perpetrators will not be registered students, so a campus disciplinary tribunal would never be called for no matter what your fancies be about the division of labor between the Dean of Students and the local police.

          Even if they were all registered students, the shnooks pushing the ‘1 in 5’ meme would still be exaggerating the frequency of the phenomenon by more than 20-fold (or by more than 12-fold if you use the fuzzier category ‘sexual assault’). The purpose of that is indubitably to justify harassing a segment of society you despise to begin with.

  13. Widen the terminolgy into the new system where probable cause has been replaced first by
    and undefined term of ‘suspicion of’ at some point redefined as ‘reasonable suspicion’ and ended up as of the end of 2015 under The Congresses approval minus 15 Senators in being broadened into the following. It requires only the word terrorism be used and that like many other parts are left undefined. “suspicion of intent to commit or commiting acts of terrorism and supporting the acts of commiting terrorism.’

    With those words involked the entire Bill of Rights and all Civil Rights disappear. A useful tool where Antifa for example is involved but there is no limit to that or any other sort of defined activity

    Worse it does not exclude US Citizens from immediately losing their civil rights under the Constitution.

    Something the Congress forgot ..they also are not excluded.

    So forget all this rights business and imagine if some one said, X did this to me and I was totally terrified.

    Fine the provisions of the Patriot Act are put into immediate use X is picked up and never heard from again. No Miranda Escobedo warnings, no phone call, no attorney, no jury, judge or trial and no appeal.

    The type of agency that would use this sort of tool was known in the last century as .lynch mob, a KGB or a Schutz Staffel SS the latter meaning ‘protective echelon;

    All it would take is the DOHS changing to DHS to the Department or Directorate of Internal Security

    Curiously enough when Neapolitano spilleld the beans about the military and veterans being the biggest danger the government (administration) faced Mr. Obama was asked about the use of DOHS and stated he would like to see it expanded into a force equal too or greater in power than the US Military. The unspoken part was the military oath is to the Constitution and not to the Commander-In-Chief.

    Back to the college campus. Let’s assume a certain Miss Y states Mr. X raped her giving some details including ‘ I was terrified. No one cares that at the time Mr. Y was in another State . He is arrested on suspicion of without further investigation or existence of probable cause. and disappears ff the face of the earth. No one cares that Miss Y from the next town is a known hooker. None of that is important. In fact no one cares if Miss Y exists. Hear say works just as well. X and Y are of course fiction for purposes of demonstration.

    Now the University campus gets it’s own protective echelon contingent. Why? Well if one terrorist exists there is liikely to be more. Perhaps those ‘activities’ are being taught in the classrooms.

    Be careful what you ask for. Getting it is much closer to reality than you think. Which certainly applies to portions of the Antifa and BLM movement – and those who support them thanks to President OBama. .

    For references any google source will lay out a laundry list of the discussion on going since 2002 on the subject but I don’t know if the TV speech given by President Obama still has a copy. in exisetence. End of the year 2015 the bill in which the extension and expansion of that procedure was embedded in the end of the year funding bill.

    I’m sure this will be ignored again…So what activity can be defined as taking part in or supporting a terrorist act?

    No one knows it’s never been defined and citizens have never been excluded from the consequences.

    At least nothing has been published that I’ve found..

    • You are so right. There is three generations (that I know of) of accusers that have records on file in Montague County, TX – that accuse mates of rape (rape kits are never followed up on) but the accusers sure benefit.

  14. The picture of DeVos with the word “education” partially hidden on the flag behind her is just perfect.
    DeVos is part of the “rape as an opportunity” crowd. Sexual abuse isn’t really a problem for them because it doesn’t exist in their minds. Women who dare to act independently don’t have any rights and those who don’t act independnatly have accepted their subservient position. As usual DeVos, sees herself as chosen by God and therefor above other women, special. Others should stay in their place, as God intended.

    Due process is important but due process must include a balanced approach to both victim and accused. In the case of sexual abuse or rape, the victim is often if not always viewed with suspicion. The system needs to be fixed.

    • OK Mr. Peabody, tell us how to fix it. Especially the cases where a female, or whatever representative doodads a person is claiming to be in possession of, decides after some poor follow up social contact, “hmmmmm…. yeah, I was raped, I guess.” My son just started college, and we discussed that. Just avoid them. If you have relations, and don’t live up to a person’s perceived set up behaviors going forward, you could spend the rest of your life marred by that. He knows not to give liberals the opportunity to the bend the law to their immediate gratification. Not to mention College Park city council just voting to allow illegals to vote. Nuts. That’s why he ain’t going to school in this state. Apparently the state of Laws of Convenience.

    • DeVos is part of the “rape as an opportunity” crowd.

      There’s a crowd for that?

      Any hoo, why do you believe due process rights should be denied the accused? Or are you of the crowd that believes they are God and therefor above all others; deciding who should have civil rights and who should not?

      And yes, apparently there is a crowd for that.

      • Good one. I suppose Justice Holmes is equally in favor of stripping due process rights for all rape defendants, regardless of whether the alleged crime happens in the halls (or dorms) of academia or beyond in the general community. It is a very slippery slope onto which we step when we start cherry-picking which group gets rights and which one doesn’t. We have had many examples of that in history. None of them had positive outcomes.

      • Olly, there is a crowd for everything on the left, although DeVos is obviously not part of it. The “rape is opportunity” crowd expands Rahm Emanuel’s “you never let a serious crisis go to waste” by including serious problems that don’t rise to the level of crisis.

    • “Due process is important but due process must include a balanced approach to both victim and accused.”

      Don’t blame DeVos for messing up due process. That was done by Obama, but if you still believe that due process is not sufficient in the so-called rape cases then how would you change the dynamics? We already know. Your answer is to blame DeVos who only rectified the problem created by Obama. You don’t have any ideas to make things better and perhaps you don’t any understanding of what due process is.

    • Squeeky – my mother used to comment that the number of pre-mature first births was unusually high. She got to say this since I was born two years after they married. 🙂

    • Man Squeeky, for being a pretty harsh moralist, I hope you stay away from alcohol! Well, you know… all things in some sort of moderation… whatever that is to the individual??? Do you drive a 2-seater?

      • No, I drive an SUV, sooo if SHTF I can bug out to my family’s safe place. Plus carry 6 cats, guns, ammo, food, jewelry, guitars and a few books if necessary. I have been thinking about pre-positioning some of my books and shoes. But I can’t quite justify why I will need my shoe collection in a post apocalyptic world.

        Squeeky Fromm
        Girl Reporter

        • Squeeky – you ever watch Rizzoli & Isles? There is a very funny episode where there are working with ‘preppers’ and Isles wants to know if they ever built one with a shoe closet.

          • Actually, I loved that show, and maybe that scene was playing somewhere in the Depths of My Subconscious. My father has always maintained that if SHTF, we would probably have a 2 month window to finalize the bug out. Assuming the catastrophe was man made, and was not a tornado, asteroid strike, or Yellowstone erupting or something. In which case there would only be minutes to bug out.

            But, if I had that 2 month window, I would put all my shoes on ebay, and about half of my guitars and books, and convert them to cash. With which, I would heavily invest in Coffee, spices, and whiskey (the cheap kind). Because I bet that stuff is going to go for big bucks in an Apocalypse.

            Oh, and for what it’s worth, I will put this on Pansy’s one of these days. It is from a survivor in Bosnia about what you need when civilization goes to crap. Just hit the link, and space down for what he said:

            https://www.zombiehunters.org/forum/viewtopic.php?f=14&t=111070

            Squeeky Fromm
            Girl Reporter

            • The most important thing is what one carries in their head. One has to be quick and canny. But one can’t just prepare for the last time something happened because circumstances change and so do our solutions.

              • True. My dad was in the Air Force, and he started teaching situational awareness to us girls when we were like 5 or 6. Then, he started doing strategy when we were maybe 9 or 10. He is the kind of person who gives his teenage girl a copy of Winning In Fast Time for her birthday. I got other stuff, too, but I will never forget the shock and awe I experienced when I opened that present. But, I read it.

                Squeeky Fromm
                Girl Reporter

        • OK, with all that, you are surely safe from any alcohol-induced low-discretionary back seat activity. You’ll need to check the necks of those guitars while you travel though…

        • David is correct about Washington.

          In October of 2014, the WA Supreme Court held that a former RCW requiring the defendant in a sexual assault case prove that consent existed violated the due process rights of the accused. The court ruled, in my view correctly, that the burden of proof establishing lack of consent falls upon the state.

          State v. JR

          an excerpt

          When a defense necessarily negates an element of the crime charged, the State may not shift the burden of proving that defense onto the defendant. To hold otherwise unconstitutionally relieves the State of its burden of proving every element of the crime beyond a reasonable doubt. We hold consent necessarily negates forcible compulsion. We overrule Camara and Gregory to the extent they hold the defendant bears the burden of proving consent by a preponderance of the evidence. We remand for a new trial consistent with this opinion.

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