How Obama Bureaucrats Are Aiming To Deny Students Constitutional Due Process

February 20, 2015


A letter from the Department of Education’s Office for Civil Rights dictating how American colleges and universities must respond to allegation of sexual violence has garnered harsh criticism from a number of law professors because, they say, it is grossly unconstitutional.


The professors, from law schools at the University of Pennsylvania Law School, Harvard University and George Washington University charge that the letter’s directives force public and private schools across the country to adopt policies that threaten to dispossess students of basic, fundamental due process rights guaranteed under the U.S. Constitution.


The very lengthy, 46-page letter entitled “Questions and Answers on Title IX and Sexual Violence” depends very heavily — at times exclusively — on Title IX, a comprehensive 1972 federal law that prohibits discrimination on the basis of sex.


If school officials fail to follow the directives of the unelected Office for Civil Rights federal bureaucrats who wrote the letter, the schools risk severe financial sanctions.


Under the Obama administration, the Office for Civil Rights “has sacrificed the basic safeguards of the lawmaking process,” wrote 16 University of Pennsylvania Law School professors, according to The Washington Post.


Take, for example, the Sixth Amendment of the Constitution, which guarantees everyone in America the right to a “public trial,” the right “to be informed of the nature and cause of the accusation” and the right “to be confronted with the witnesses.”


The letter from the Obama administration’s Office for Civil Rights guarantees exactly none of these things and, in fact, directs school officials to avoid providing these basic rights to students accused of sexual violence.


The letter instructs school officials to allow students to make sex-crime allegations while keeping the student against whom the allegations are made totally in the dark about who has made the charge.


Moreover, charges must be kept secret.


“[I]nformation should only be shared with individuals who are responsible for handling the school’s response to incidents of sexual violence,” the letter instructs.


“In instances affecting many students, an alleged perpetrator can be put on notice of allegations of harassing behavior and be counseled appropriately without revealing, even indirectly, the identity of the student complainant.”


The Office for Civil Rights also clearly and explicitly states that a person charged with a sex crime on an American college campus is not entitled to any hearing.


“The investigation may include a hearing to determine whether the conduct occurred, but Title IX does not necessarily require a hearing,” the letter startlingly states.


The 16 Penn law professors observe that this edict is a serious violation of constitutional norms.

“[A] student who denies the charges is entitled to a fair hearing before being subjected to serious, life-changing sanctions,” the professors explain. “These cases are likely to involve highly disputed facts, and the ‘he said/she said’ conflict is often complicated by the effects of alcohol and drugs.” 


“Cross-examination has long been considered as perhaps the most important procedure in reaching a fair and reliable determination of disputed facts,” the profs also note.



More fundamentally, the Penn professors wonder why college bureaucrats are investigating serious, felonious sex crimes at all.


“It is not altogether clear, however, why the federal government requires such serious cases to be handled by campus tribunals staffed by academics, instead of by professional judges and lawyers,” they write. “Perhaps it is time to funnel the more serious cases through the criminal justice process and to make that process much more accessible to and supportive of sexual assault complainants.”


The Penn professors also point out that the Office for Civil Rights is overstepping its constitutional bounds even by ordering college officials to address sexual assault charges.

“Congress has passed no statute requiring universities to reform their campus disciplinary procedures,” they note.


Also, critically, the Office for Civil Rights has provided directives concerning the standard of evidence for sexual violence allegations that are almost certainly unconstitutional.


The U.S. Supreme Court has held that the Fifth and Fourteenth Amendments protect defendants charged with crimes by requiring the open demonstration of proof beyond a reasonable doubt for each and every crime charged. The Penn professors suggest that a lesser standard is appropriate in a college setting. In any case, the Office for Civil Rights directs college administrators to a preponderance-of-the-evidence standard, which is the lowest possible standard of proof — very roughly, 50.01 percent.


“We can and should provide protection and support for those who are subject to sexual abuse, and at the same time provide a fair process that is calculated to yield a reliable factual determination,” the Penn law profs conclude. “Ultimately, there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process.”


In October, a group of 28 Harvard Law School professors circulated a similar statement about the Obama administration’s draconian policies.


“The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment,” the Harvard professors wrote. “The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.”


The Harvard professors further charged that their own school’s new sexual harassment policy based on instructions from the Office for Civil Rights abandons “balance and fairness in the rush to appease certain federal administrative officials.”


In an eloquent comment to The Washington Post’s story about the letter from the Penn law professors, famously litigious George Washington Law School professor John Banzhaf observed that the U.S. Constitution “does apply to state colleges.”


“The Supreme Court has repeatedly held that in situations in which the accused face serious consequences, they must be provided with significant procedural Due Process protections generally including the right to cross examine adverse witnesses,” Banzhaf wrote.


“[T]policies of many if not most public universities would be found unconstitutional if challenged in court, and administrators might even be found liable for damages.”


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