Saving Campus Due Process Isn’t A Game For Dilettantes

They mean well. They always mean well. Lord, save us from the well-intended.

Dubbed the Campus Equality, Fairness, and Transparency Act (CEFTA), the bill would largely overturn the regulatory apparatus that has governed campus sexual-misconduct proceedings since the Department of Education’s 2011 “Dear Colleague” letter, now the subject of litigation.

Though CEFTA is written for introduction in Congress, its author – Stop Abusive and Violent Environments – wrote that it could be modified for the state level as well.

The bill won’t be enacted, so it’s not like it’s worth the time to parse it in detail. This is good, because writing a law is very difficult and while this was a fine effort for n00bs, it’s replete with internal inconsistencies. What? Well, how about the accused having the right to remain silent, but the complainant having the right to “safely” (whatever that means) examine the accused.

(7) The accused shall be informed of the right to remain silent, and that any statements made to investigators made prior to the proceeding, or made during the course of the proceeding, may be used against the accused in a court of law if criminal charges are filed.

(8) The institution shall permit each party to the proceeding to safely confront witnesses, including the complainant and accused student, in an appropriate manner, including by submitting written questions to be asked by the person serving as the adjudicator in any formal hearing or similar adjudicatory proceeding.

Obviously impossible? Obviously. And then there’s the naivete that comes of having no clue how law works.

(1) The institution shall designate individuals as confidential advisors who have protection under State law to provide privileged communications.

Protip: you don’t get to dictate to other jurisdictions what is and isn’t privileged. Not even if you really, really want to.  As of now, there is no jurisdiction anywhere that has a “college campus confidential advisor” privilege. Go figure.

And then there’s the standard of proof, which has been a huge issue following the Department of Education’s ramming “preponderance” down the institution’s collective throats.

(d) Standard of Proof.

An institution of higher education may establish and apply such standard of proof as it considers appropriate for purposes of any adjudication carried out as part of an institutional disciplinary proceeding under this section, and which standard is consistent with the laws of the jurisdiction in which the institution is situated. Said standard of proof shall be commensurate with the severity of the alleged sexual conduct violation and the potential penalties.

Preponderance? Clear and convincing? Or, if the school “considers [it] it appropriate,” maybe reasonable suspicion? Or unreasonable suspicion? Maybe somebody was drunk when they came up with this, except that leads us to the new prohibition.

(c) As appropriate, the policy shall also address the institution’s specific rules such as prohibition of sponsorship of campus events by alcohol retailers, restrictions on advertising, prohibitions or restrictions on alcohol consumption in residence halls, limitations on student- or campus-sponsored events that involve alcohol, designation of areas where alcohol can be consumed, elimination of alcohol self-service, and not serving alcohol at campus functions that underage individuals may attend.

Thankfully, heroin is still allowed, because who would have a good college experience without an altered state of consciousness? The problem isn’t drunk kids do stupid things, but that the mommies in charge don’t get to channel Carrie Nation and wag their bony fingers while telling students what to do in their spare time. But whoever wrote this apparently had a big hatchet and wants very much to use it.

But the fact that the substance of this proposed law is extremely poorly conceived and drafted even worse is hardly the big issue.  There are many who raise, with good reason, problems with the lack of due process in campus adjudications. But those who see it as the problem are out of their league. There is no the problem; there are problems. There are problems upon problems. And tweaking one will not make the rest disappear.

But conceding others will suck the wind out of any hope of preventing this travesty.  These are the same folks who feel empowered to decide which due process rights to give away in their negotiation process.  Not their rights, but yours. And your children’s. And some passionate advocate has decided to surrender your rights under the guise of representing your best interests. Well intended, of course.

Yet, surrendering your due process rights based upon some unknown advocates’ passionate feelz is the least of the problems with this misbegotten law. What they don’t grasp is that they are conceding defeat in the war over your children’s lives and are now dickering over the terms of surrender.  Maybe they’re happy being losers, but they don’t speak for anyone else.

There is no basis under Title IX for the DoE’s Office of Civil Rights to compel colleges to adjudicate criminal conduct such as sexual assault and rape.  That some radicalized bureaucrats decided they wanted to ram their progressive flavor of Utopia down the nation’s throat doesn’t make it law.  “Lhamon said so” is not the word of the lord, as should be clear to anyone paying attention with a smattering of legal acumen.

So the solution is to urge a law that gives authority to the Office of Civil Rights that Title IX does not?

As if this point couldn’t be driven home any more clearly, the drafter of this unbearably ugly baby conclusively proved they don’t understand the law of Title IX.

(2) Sexual harassment. The term sexual harassment means conduct of a sexual nature that is severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.

At first blush, this would appear to be based upon the Supreme Court’s decision in Davis v. Monroe County. Except they’ve gotten the law backwards.

We consider here whether a private damages action may lie against the school board in cases of student-on-student harassment. We conclude that it may, but only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities. Moreover, we conclude that such an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit. (Emphasis added.)

This doesn’t give rise to a system of affirmative punishment of students, but on school “programs and activities” that reflect “deliberate indifference,” and then only when the harassment is so “severe, pervasive, and objectively offensive” that it precludes an educational opportunity and benefit. This is about what colleges do, not what students do.

While we may appreciate the passion of advocates with the best of intentions, no one gave you the authority to lose the war for the rest of us because you just don’t have the capacity to appreciate what you’re doing, or you’re certain that your self-righteousness gives you the moral force to be the same as Catherine Lhamon, except with your rules in place of hers. Don’t let your reach exceed your grasp.

When this proposal was brought to my attention, I made clear that it was a terrible idea. The pompous response, which was so very passionate advocate-ish, was “suggestions are always welcome.”  So I offered my suggestion as to what should be done with this proposed law:

6 thoughts on “Saving Campus Due Process Isn’t A Game For Dilettantes

    1. SHG Post author

      My post or the law? Because I do all first drafts in crayon. Working through the 64 box at the moment.

  1. Jonathan Edelstein

    Lord also save us from the word “appropriate.” It stretches even further than “discretion.”

  2. Pingback: Beware The Loyal Opposition, ACLU Edition | Simple Justice

Comments are closed.