It’s a scary time to be on campus and not just because of COVID-19. For the past decade, the U.S. Department of Education has prioritized micro-management of disciplinary procedures on campus for students and faculty accused of sexual misconduct. The department has consistently bullied schools into adopting specific forms of disciplinary proceedings under threat of losing their significant federal funding. The prevailing theme of the department has been that schools should make these “kangaroo justice” procedures fundamentally unfair to defendants.
Much of this mess started in 2011 when the department, through its Civil Rights Office, sent a “Dear Colleague Letter” to educational institutions. This and related documents informed without basis in existing law that colleges were no longer allowed to provide accused students with basic constitutional protection, including the ability to challenge the evidence the college collected, prove their innocence, and even confront their accusations. In response to this guidance, schools across the country quickly eliminated these crucial protections and rigged their disciplinary systems to help ensure that all offenders would be held accountable, regardless of whether the accusers had a legitimate basis.
Former Education Secretary Betsy DeVos created reason to hope when she acknowledged that many students were denied “due process” and “fundamental justice” as a result of this informal legislation. Secretary DeVos repealed the dear colleague’s letter and accompanying documents, and she then issued a rule requiring the colleges to adopt some very minimal protections for the accused.
However, this rule may prove to be short-lived. The Biden administration has renewed the widespread war on procedural justice. On March 8, 2021, President Biden issued a decree instructing the department to “review” its refereeing rule on campus, “consider suspending, revising or repealing” the rule, and just in case we missed the point, “issue new guidance” on the issue. .
While the order was ultimately non-binding on whether the rule would be repealed, the Office of Civil Rights followed on 6 April 2021 with a public letter resolving any doubts. The OCR announced that it “expects to publish a notice of federal regulations in the Federal Registry amending the Department’s regulations in Section IX.” The OCR will almost certainly repeal the DeVos rule, and the rumor will formally ban colleges from protecting the rights of the accused.
OCR is now run by Suzanne Goldberg, a well-known critic of procedural justice for the accused. When they were issued, Goldberg objected to the rules of Title IX in an op-ed entitled Keep Cross-Examination Out of College Sexual-Assault Cases. In the event that the title was too subtle, she argued that a requirement for adult students to be cross-examined during disciplinary hearings of sexual misconduct could be “trauma-inducing” for prosecutors. “Campuses are not courtrooms,” she wrote, and therefore she advocated eliminating the proper process that the Bill of Rights has long demanded in a courtroom.
President Biden has also nominated Catherine Lhamon to be the permanent head of the OCR, which previously ran the office and oversaw its efforts to undermine the proper process of guidance documents from the agency. She testified at her confirmation hearing that the DeVos rule allowed “students to rape and sexually harass impunity”, as if procedural justice somehow gets guilty of escaping justice. What seems to have been lost on Lhamon, Goldberg, the department and the president himself is that the government’s position is an explicit rejection of constitutional guarantees. Courts have held cross-examinations in campus meetings are constitutionally required. As Judge Amul Thapar wrote to the Sixth Circuit, “Proper litigation requires cross-examination in circumstances like these, because it is the greatest legal engine ever invented to uncover the truth.”
Caleb Kruckenberg is on trial at the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group.
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