Jim Hartman: Ending college kangaroo courts
November 3, 2017
Secretary of Education Betsy DeVos confirmation battle last February resulted in Mike Pence becoming the first vice president in history to cast the deciding vote for a cabinet nominee, the 51st Senate vote to confirm.
Opponents portrayed DeVos as an unqualified, wealthy dilettante with no public education knowledge or experience. Democrats waged an all-out effort to defeat her nomination, with weeks of phone calls, emails and advocacy, including physical threats and violence. This hostility and threats continue today, requiring her protection by U.S. Marshals.
The exceptional fervor of opposition focused on DeVos was fueled both by "resistance" anger directed at the man who appointed her (President Trump) as well as funding and organization from the politically potent National Education Association and American Federation of Teachers, the most powerful force in today's Democratic Party.
DeVos' defenders depicted her as a philanthropist, devoting more than 30 years and much of her fortune to promoting school reform, especially charter schools and vouchers. Along with grassroots "school choice" advocates, she also had pro-reform "establishment" endorsers — Republican former Govs. Jeb Bush and Mitt Romney and former Democratic Sen. Joe Lieberman.
With the fierce confirmation process behind her, DeVos has taken aim at a notorious 2011 Obama Education Department "guidance letter" directed to college administrators on the subject of adjudicating sexual assault claims on campuses. While intended to address the issue of sexual assaults being ignored or even covered up, the letter ordered colleges to create what amounted to Title IX "kangaroo courts" — or risk losing federal funds.
The letter required colleges to lower the burden of proof in sexual assault cases to a "preponderance of the evidence" standard (50.1 percent probability) without adequately preserving essential due process rights — such as access to counsel, access to available evidence, and full and fair cross-examination of witnesses. At the same time, the Obama administration commenced dozens of open-ended investigations of colleges, acting on claims that they were insufficiently committed to protecting women from rape and applying the new "guidance" to evaluate university policies.
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These actions were fundamentally lawless. No American administration has the ability to rewrite the law by merely issuing a letter. At the very least, the Obama administration should have followed the rule making process required by the Administrative Procedure Act. In effect, the Department of Education violated the APA, Title IX, and the Constitution.
Strong criticism of this policy was expressed by highly regarded journalist and attorney Stuart Taylor Jr. in his book "The Campus Rape Frenzy: The Attack on Due Process at American Universities." More than two dozen Harvard law professors, 16 law professors at the University of Pennsylvania, and the American Council for Trial Lawyers, expressed similar concerns.
On Sept. 22, DeVos formally rescinded the former "guidance" on how colleges should adjudicate sexual assault cases on campuses. DeVos noted sexual assaults are serious crimes best handled by the criminal justice system. The most stringent punishment schools can order is expulsion. When colleges employ judicial-like tribunals, they have an obligation to follow due process. Without due process, an innocent student can be branded as a rapist for life.
An unlikely ally for DeVos has also recently emerged — California Gov. Jerry Brown, who vetoed a bill that would have codified the Obama-era policies on campus sexual assault. Brown's veto letter concluded: "Thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault — well-intentioned as they are — have also unintentionally resulted in some colleges' failure to uphold due process for accused students."
An episode is closing where the zealous search for victims to defend created new ones in the process. Adults in both political parties need to keep their eyes on bedrock due process principles, regardless of what they think of the Trump administration.
Jim Hartman is an attorney residing in Genoa.