Gillibrand Revised—Still No Due Process

The Chronicle quotes New York senator Kirsten Gillibrand celebrating the revised version of the Campus Safety and Accountability Act (CASA), introduced last week, on a an expanded bi-partisan basis (up from eight co-sponsors to twelve), to the Senate. Rejoiced Gillibrand, “”The bill actually has clarified rights for the accused,” since the current system “doesn’t serve the accused.”

The celebration of fairness for the accused seems a little out of place for Gillibrand. After all, this is a senator who in two official statements posted on her website referred to a resident of her state as a “rapist,” even though the affected student, Paul Nungesser, had been found not-culpable by Columbia and was not even charged by police. Clearly Gillibrand’s definition of due process differs from that of, say, a typical civil libertarian.

In any case, FIRE’s Joe Cohn took a look at the bill. In 51 pages, it contains a mere two references to due process for the accused. Here’s Cohn: the bill “provides both students with notice of the charges and sufficient time to ‘meaningfully exercise the due process rights afforded to them under institutional policy.’” The phrase meaningfully exercise isn’t defined. This is what Senator Gillibrand thinks is a good deal for the accused.

The bill also repeatedly refers to students who level allegations of sexual assault as “victim” or “victims”—even though, of course, at a pre-adjudication stage there’s only an accuser or an alleged victim, not a victim. For instance, here’s how the bill describes rights afforded to the accuser in the original intake interview: “The victim shall be given the option to have the interview recorded and to receive a copy of the recorded interview.” How did the senators decide the accuser was already a “victim”? Did they use the Gillibrand rule, that accusers must be assumed to be truthful?

The bill also seeks to mandate colleges creating a “confidential advisor” for the “victim”—again, presuming that the accuser is automatically a victim—while ordering no comparable personnel assistance for the accused. This provision would seem to be, on its face, both a Title IX violation and a contradiction of the demands of the “Dear Colleague” letter, which argued that creating procedure only open to the accused (the ability to appeal) constitutes a Title IX violation. In this respect, the renewed CASA encapsulates the anti-due process advocates basic approach to Title IX issues—if the measure can be used to weaken due process protections, it should be employed. Otherwise, it can be ignored.

Gillibrand and co-sponsor Claire McCaskill have distinguished themselves over the past two years for their hostility to anything approximating due process for students accused of sexual assault. But it’s worth noting that six Republicans—Chuck Grassley, Marco Rubio, Dean Heller, Kelly Ayotte, Shelley Moore Capito, and Roy Blunt—co-sponsored this bill. While the Obama administration has taken the lead in seeking to eviscerate campus due process, House and Senate Republicans have more than willingly gone along.

This record makes all the more remarkable a letter last week from two members of the U.S. Commission on Civil Rights. Gail Herriot and Peter Kirsanow wrote the chairs of the House and Senate appropriations committees urging them to reduce OCR’s funding, giving the agency’s recent record of lawless behavior. Regarding allegations of sexual assault on campus, the commissioners expressed skepticism about OCR’s authority to “strongly discourage[] cross-examination of accused students by their accusers.” Nowhere, they correctly noted, “”in the text of Title IX or in earlier OCR regulations can . . . a requirement [for schools to use the preponderance of evidence threshold] be found.” Colleges should work with police rather than undertake criminal investigations, the commissioners reasoned. Their conclusion? “OCR has pushed past the limits of its legal authority in addressing sexual assault and harassment on college…campuses.”

Herriot and Kirsanow accurately concluded that absent congressional oversight, OCR seems unlikely to be challenged. Schools themselves rarely (if ever) resist, meaning that “courts never have the opportunity to rule OCR’s guidance out of bounds.”

The Republicans have controlled the House for more than four years. Will the commissioners’ letter provide an opening for—at the least—an oversight hearing regarding OCR’s tactics and agenda?


  • KC Johnson

    KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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13 thoughts on “Gillibrand Revised—Still No Due Process

  1. Has Gillibrand ever considered that unsubstantiated accusations and erroneous guilty verdicts might cause emotional distress for the parents of accused students?
    Can she see how these mothers & fathers might be victims in “rape culture”; or does she disregard them as collateral damage in pursuing her agenda?

  2. Perhaps Ms Gillibrand needs a personal copy of the Magna Carta Libertatum. I’m sure that, as Senators believe they are above the law of that ‘silly’ Constitution, it would be an eye opener for her to discover that ‘due process’ dates back 800 years, along with the concept of ‘equal rights under the law’.

  3. Dear Prof. Johnson: great post. But did you reverse the “accused” and “accuser” in the quote from the Heriot/Kirsanow letter about the OCR discouraging the exercise of a right to cross-examine one’s adversary? The letter text (at the Washington Examiner website) is: “Another problem with the way the federal government now requires colleges to handle sexual assaults, the letter stated, was the strong discouragement of allowing students to cross-examine their accusers.”

  4. Another question comes to mind. When the Bill includes the “meaningfully exercise the due process rights afforded to them under institutional policy,” what is meant by “institutional policy?” What institution? Does that mean if the university has no due process mentioned in its procedures, then no due process need be afforded?

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  6. Not mentioned are the financial implications to both the student and his parents if he is suspended mid-semester as there is no refund — the student looses credit for the courses he is taking that semester and doesn’t even get a refund for unused room & board.

    As bad as this is, the implications if he is on Financial Aid are even worse — he (and his parents) must IMMEDIATELY repay all financial aid received to pay for that semester. As I understand it, all loans that he (and often his parents) took out for that semester must be IMMEDIATELY repaid IN FULL, along with any Pell Grants and such being repaid to the Federal Government — again, IMMEDIATELY and IN FULL.

    This is money which neither he nor his parents had in the first place — at best it will be a major hardship for them to somehow produce it now., If he/they can’t, *all* the student loans go into default, with IMMEDIATE payment demanded on all, and even Bankruptcy isn’t an option as student loans are nonchargeable. Once one is in default, the government grabs everything including Social Security payments, it’s a real mess.

    As I understand it, this doesn’t happen if the suspension is delayed until the end of the semester — one can imagine how this fact could be (and likely is) used to bully students into quietly accepting fault for things they didn’t do.

    Throw in all kinds of promises about how records will be purged in the future, how the student can come back a year or two if he just quietly agrees to leave now — promises which the institution has absolutely no intention of keeping — and this is how they get away with this stuff.

    1. “one can imagine how this fact could be (and likely is) used to bully students into quietly accepting fault for things they didn’t do.”
      “Throw in all kinds of promises about how records will be purged in the future,”

      Much as a district attorney will make promises to an accused to accept a plea bargain instead of going to trial. It counts as a “win”, inflating the statistics.

      It’s all part of the agenda. They know that due process wont be discarded entirely, so they are covering all the bases.
      -Make accusations almost as damaging as a guilty verdict, then:
      -Incentivize the accused to make a deal in order to spare themselves the full fallout of the accusation. Incentives that will likely fail to appear.

      The accused gets destroyed, and feminists get another “win” to promote their rape hysteria campaign.

    2. This is obviously going to be a fertile field for lawyers. I wonder how many know anything about Bayesian algebra ?

  7. P.P.S.: It may be unrealistic to expect Congress to provide oversight when they are the ones exploiting the panic to win their biannual elections.

  8. P.S.: My apologies for an even longer addendum but I just wanted to make a quick statistical observation.
    Based on a beyond a reasonable doubt standard (80% probability), 20 out of every hundred people found guilty are probably (but unprovably) innocent. Based on a preponderance of evidence standard (50%) probability, half of those found guilty are probably innocent. So 30 of those found guilty on the lax standard will be found innocent on the stringent one. Unfortunately a certain fraction of these will also be misclassified.

  9. Dear Dr.Johnson,
    My apologies for this long letter. I just wanted your opinion on my thoughts, rather than posting on your website.

    I have been following your blog with some interest and watched your presentation at George Washington University with no small pleasure.

    I just wanted to share with you my thoughts on due process and the method of determing guilt/ liability/ “responsibility” from the perspective of a physician who deals with uncertainty.

    Medical diagnoses vary widely in certainty between the obvious to the obscure. For the patient who has died of a decapitation (as an extreme example), there is no doubt regarding the diagnoses. At the other extreme are the healthy, well people who have been exhaustively screened for every known risk factor (“the executive physical”). The vast majority of diagnoses lie in the middle with varying degrees of certainty. In these cases, diagnoses tends to be tentative and subject to revision. Testing itself has limited accuracy and needs to be subject to Bayesian analysis, judging both pre-test and post-test probabilities. The binary approach (“normal”/ “abnormal”) is at best misleading but provides referring physicians a false sense of security which they seem to need in order to cope with the uncertain nature of their work under the shadow of the liability system.

    For example, in stress testing, UCLA has proposed a 5 band reporting format: “Normal”/ “Probably normal”/ “Uncertain”/ “Probably abnormal”/ “Abnormal”. As you move from left to right, the fraction of patients with significant coronary disease increases but in every band, there are always normal patients. This reporting format though much more realistic and accurate has not become popular because it lacks the false, but necessary sense of certainty provided by a binary outcome.

    This brings me to the binary outcome method of the legal system “guilty”/ “not guilty”. The minority of cases have such clarity regarding guilt or innocence that judges have no difficulty finding accurately. However in the majority of cases where information is always incomplete in varying degrees, what judges and juries are probably doing is educated guesswork to judge the risk of guilt in the political atmosephere they are living in. Regardless of what criteria they use (preponderance of evidence/ beyond a reasonable doubt/ beyond any doubt), in every population of those found “guilty” will be those innocent of the crime. Likewise there will always be a fraction of the guilty in those “found not guilty”. Due process may reduce but not eliminate the misclassification. A careful judge should ensure those innocent people who are “found guilty” cannot be proven innocent so they are the collateral damage of this process. The appearance of justice is more important than justice in these cases, since the function here appears to be to minimize vigilantism/ conflict resolution rather than trying to determine the unknowable truth.

    Those weakening due process want to shift the criteria of “guilt” to to catch more of the guilty who would have otherwise escaped. They do not care about the increasing fraction of innocent who will be necessary wrongfully convicted since they feel it cannot happen to them (until someone like Judith Grossman sees the light in a Wall Street Journal op-ed).

    The shifting of criteria/ weakening of due process has historically occurred in a political atmosphere of panic. Whether it be the Salem Witch Trials, the lynching of black men on the accusation of assault by white women, the daycare center child sexual assault charges, when those in power find it intolerable to see any guilty person go free, they feel justified in sacrificing an increasing fraction of the innocent (as did Zerlina Maxwell in the Washington Post).

    As you correctly pointed out in your talk, those who can skillfully stoke panic win elections. I think the rules and legislations proposed are intentionally defective as the legislator from California admitted regarding the inability to exonerate in the absence of Hofstra-like video evidence. There is a legal analogy in the form of an “intentionally defective trust” for estate planning. Those in power are probably planning to milk this atmosphere until the panic dies down and the judiciary strikes down these laws/ rules as an interference by the executive/ legislature in judicial power.

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