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July 5 2017

Trump Ed Department Takes Steps Towards Restoring Due Process on Campus--American Bar Association Not Pleased

by Charlotte Hays

We've had a lot on the blog on the Obama administration's attack on due process for those accused of  sexual assault on campus.

The Obama administration waged the attack on due process through the Department of Education, which issued mandates and guidelines for handling such accusations that assume that anyone who is accused is automatically guilty. It was almost impossible for the accused to defend himself (and it is almost always a him who is the accused).

Now Candice Jackson, acting  head of the Ed Department's Office of Civil Rights, is trying to roll back some of these mandates and facing opposition from Democratic senators, the American Bar Association, and a New Jersey taskforce--all of which have come out against due process, a cornerstone of our system of law.

KC Johnson explains what is happening in an opinion piece in today's Wall Street Journal:

Ms. Jackson has already reversed [an] Obama-era policy that sought to tip the scales in favor of accusers. Earlier this year, BuzzFeed revealed that her predecessor, Catherine Lhamon, had ordered that whenever someone filed a Title IX complaint against a school with the Education Department, the civil-rights office would investigate every sexual-assault allegation there over several years.

The shift sometimes led to reopening cases in which accused students already had been cleared. Ms. Jackson argued last week that this policy—which Ms. Lhamon never announced publicly—treated “every complaint as a fishing expedition through which our field investigators have been told to keep searching until you find a violation rather than go where the evidence takes them.”

These first signs of renewed fairness have elicited strong protests. Last week 34 Democratic senators, led by Washington’s Patty Murray, sent a letter to Education Secretary Betsy DeVos accusing her of endorsing “diminished” enforcement of federal civil-rights laws. The senators did not even make a pretense of caring about due process for the accused. Congressional Republicans have mostly remained silent.

Meanwhile, a New Jersey taxk force, appointed by Gov. Chris Christie, and packed with academic administrators and victims' rights advocates, has issued a report that implicitly undermines due process. The report refers to the accuser as the "survivor" before it has been established that her accusation was accurate, prejudging the guilt of the accused. The accused has an "adviser," but the adviser cannot speak publicly in his defense and thus a college student may find himself alone going up against experienced college lawyers with no one to help him speak for himself or frame questions during the hearing.  

More shockingly, none other than the American Bar Association has come out against due process (at least on campus). Johnson writes:

A mid-June report on campus sexual assault from, of all organizations, the American Bar Association also played down the importance of lawyers to a fair disciplinary process. The ABA task force recommended that if a college does permit accused students to have a lawyer—and many don’t—cross-examination by the defense should be forbidden. In the ABA’s view, lawyers should submit questions to the disciplinary panelists, who can then decide whether, and in what form, to ask them.

The Supreme Court has called cross-examination “the greatest legal engine ever invented for the discovery of truth.” The ABA urges its abolition on campus to prevent “the potential trauma from having a victim be directly questioned by her assailant”—again, presuming the accused student guilty.

State and local courts have overturned more than fifty of these campus findings of guilty, but that is no substitute for having due process in the beginning. Johnson urges

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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