An Opponent of Due Process for the Supreme Court?

Amidst the increased recent attention paid to injustices in the criminal justice system, the opposition of prominent Democratic legislators—and progressive activists—to campus due process stands out more remarkably. The point was reinforced by two events, separated by a few hours, on Tuesday.

To start the day, a progressive activist group called “Demand Justice” released a “shortlist” of candidates that the next Democratic president should consider nominating to the Supreme Court. The list, of more than 30 names, included only two current Appeals Court judges. But it did include the former head of the Obama Education Department’s Office of Civil Rights Catherine Lhamon.

As chair of OCR during Obama’s second term, Lhamon was perhaps the highest-profile opponent of fair treatment for accused students anywhere in the country. Guidance issued under her auspices even suggested that public universities needed to subordinate the due process rights of accused students to Lhamon’s personal interpretation of Title IX. (“A school should ensure that steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.”)

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At virtually any other point between the 1950s and 2011, someone best known for eviscerating the rights of the accused would be seen as a pariah on the left, not as a possible Supreme Court nominee. That Demand Justice touts Lhamon shows the extraordinary shift in thinking in the last decade among progressive activists.

Lhamon wasn’t the only short-lister with a questionable record on students’ rights. Vanita Gupta, like Lhamon, a former Obama official, denounced Betsy DeVos in 2017 for rescinding the Obama-era Dear Colleague letter. Gupta issued a wild statement accusing DeVos of “seeking to silence the voices of survivors of sexual assault.” She offered no evidence for her claim.

A few hours after the Demand Justice gambit, the Democrats on the House Education and Labor Committee issued a series of glossy documents outlining their proposed updates to the Higher Education Act. Their measure, dubbed the College Affordability Act, has lots of good ideas. But it also includes a provision that has nothing to do with affordability: “In response to regulatory efforts to weaken the enforcement [sic] of Title IX of the Education Amendments Act of 1972, the bill prohibits the Secretary from issuing or enforcing the sex discrimination rules proposed in November 2018 or any substantially similar regulations.”

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Committee talking points offered no explanation as to why (for example) ensuring fair hearings with cross-examination, or full-access by the parties to evidence in the investigation, would weaken the enforcement of Title IX. The speed with which opposing procedural protections for accused students has become not only the consensus among Democratic officeholders—but a consensus whose rationale requires no explanation—is remarkable.

The apparent rationale behind the Democratic proposal—in a sentiment first clearly articulated by Washington senator Patty Murray in 2017—is one-sided procedures are essential to increase reporting of sexual assault allegations on campus. This line of argument reached its logical, if absurd, conclusion in a recent filing from USC, which maintained that procedures that allowed even indirect cross-examination of the accuser—through questions submitted to the panel—”harms victims of sexual assault by making it harder to expel students who commit atrocious acts.”

USC—like Lhamon and House Democrats—appears to have forgotten that accused students, even under the preponderance standard, are presumed innocent.

KC Johnson

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.

3 thoughts on “An Opponent of Due Process for the Supreme Court?

  1. I closely followed the Stanford case of Brock Turner and the recall of the judge in that case. The recall of the judge was based on a carefully planned disinformation campaign by Stanford Law Professor Michele Dauber, in my view. There was no rape, no sadism (no pine needles “jabbed” anywhere) no injuries – I have never been able to determine with certainty that the alleged victim and the accused freshman made out before the Swedish grad students came along.
    What I think I learned was, the mainstream media is not going to do any fact checking – just the opposite, they took the false narrative and ran with it – and, while I very much appreciate Minding the Campus and other truth and fact based media on this subject – there needs to be some kind of method to get the mainstream media to be more truthful in these issues. Say what you will about her honesty and decency, Professor Dauber (who may be close to Lhamon, IIRC, Lhamon was scheduled to speak at a conference Dauber organized at Stanford) is a very effective propagandist.
    Without lying as Dauber did, the folks in favor of due process must get the message out, somehow.

    I realize this is not narrowly on topic but I think it relates generally to what is going on. In my experience, even in the ultra left wing, “progressive” San Francisco Bay Area, the average person simply does not know what is going on, and would oppose it if he did.

  2. “In response to regulatory efforts to weaken the enforcement [sic] of Title IX of the Education Amendments Act of 1972, the bill prohibits the Secretary from issuing or enforcing the sex discrimination rules proposed in November 2018 or any substantially similar regulations.”

    I keep reminding people that the Higher Ed Act of 1965 — from whence all federal financial aid money flows — expired in 2013 and still hasn’t been reauthorized yet — with Congress funding things on an interim patchwork basis since then. And I’ve been hearing that the debate is over student due process, with the Democrats wanting to deny it, and the Republicans opposing that. And the Senate’s refusal to pass independent HBCU funding indicates that this patchwork funding won’t continue.

    As the Democrats currently control the House, it’s likely that their version will have something reprehensible like this in it — and while I doubt such a version would pass the Senate, my guess is that President Trump would veto it if it did.

    And then what happens?!?

    At some point, all the monies already authorized will run out and without additional authorizations, there is no more student aid money. No more Pell Grants, no more Federal Student Loans. And the whole calliope will go crashing to the ground.

    And then what?

    No one in Higher Ed is going to vote for Trump anyway, nor is ANTIFA or any of their ilk. Conversely, Trump’s supporters will love him for it, as will the populist wing of the Republican Party. And a lot of mothers are going to see this as a fight for their sons, Middle America is starting to realize what is happening in the Ivory Gulag.

    So Trump could hold the line and say “no money without due process” and force the Dems to shut down Higher Ed as it currently exists. It could become interesting…

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