Short Take: Due Process Isn’t Dead Yet, UC Santa Barbara Edition

Can you blame UC Santa Barbara for trying its darndest to comply with the demands of the “Dear Colleague” letters, their “questions and answers,” the cries of anguish emanating from the Obama Department of Education, Office of Civil Rights, not to mention the unlawful threat of withholding federal funds should they not? Well, yes, you can.

Due process – two preeminent words that are the lifeblood of our Constitution. Not a precise term, but most everyone knows when it is present and when it is not. It is often most conspicuous by its absence. Its primary characteristic is fairness. It is self-evident that a trial, an adjudication, or a hearing that may adversely affect a person’s life must be conducted with fairness to all parties.

Here, a university held a hearing to determine whether a student violated its student code of conduct. Noticeably absent was even a semblance of due process. When the accused does not receive a fair hearing, neither does the accuser.

The plaintiff, a male student, characterized as “John Doe,” was suspended for eight semesters for sexual misconduct.

John was denied access to critical evidence; denied the opportunity to adequately cross-examine witnesses; and denied the opportunity to present evidence in his defense. UCSB denied John a fair hearing. We reverse.

In other words, he was railroaded in a process where he had no chance to defend himself from the accusations. Shockingly, he lost and was punished. And, according to the chronicler of such things, K.C. Johnson, this is the 118th adverse court decision on Catherine Lhamon’s extremely ugly effort to re-engineer Title iX into an inquisition to vindicate the feelings of co-eds at the expense of male students.

One hundred and eighteen times, thus far, the courts have said “No.” I thought you should know.


21 thoughts on “Short Take: Due Process Isn’t Dead Yet, UC Santa Barbara Edition

  1. Gregory Smith

    Don’t recall ever reading a decision before that begins with the words “Due Process”, nor one in which the judge made so little effort to disguise his obvious anger and frustration with the actions of the Defendant. If the courts continue at this pace whatever tweaks DeVos makes are going to be overtaken by constraints imposed by legal precedents.

    1. SHG Post author

      While the new DeVos regs have yet to be officially published, they appear to be a dubious compromise for fear that she’ll be the target of vitriol from accusers as a rape apologist. It may very likely turn out that courts will impose a far more stringent due process regimen than DeVos will, and it will still be inadequate until courts get colleges out of the sex policing business.

      1. B. McLeod

        Well, until the process improves to the point that the rabid constitutional violations don’t facially determine the case, the courts don’t have to reach (and plaintiffs don’t have to make) the “absolutely nothing in Title IX authorizes any of this” argument.

  2. Charles

    This is a timely example of how the political party of the person appointing a judges dictates the outcome of future cases. Judge Gilbert was appointed by that dyed-in-the-wool Republican Jerry Brown, Judge Perren by Republican Gray Davis, and Judge Yegan by RINO George Deukmejian, so of course they decided the case this way.

    1. Jim Tyre

      Charles’ point, if any, eludes me. Davis and Brown were fairly liberal Democrats. Deukmejian was a conservative Republican.

      1. LocoYokel

        I think that is his point. It doesn’t matter what party appoints the judge, you will (should) still get good judicial results.

      2. Charles

        One of the arguments during the recent War of the Nominations followed these lines:

        We can’t let a Republican appoint a judge because the judge will be a political hack that will do the bidding of the person who appointed him. For example, they would overturn a Title IX suspension. No Democrat appointee would do that, so we must oppose any Republican appointee to the death and stall until a Democrat can make the nomination.

        To undercut the “judges are just political hacks theory of law,” as our host put it, I intentionally mislabeled the judges all as having been appointed by Republicans. You follow?

  3. JMK

    You can beat the rap but you can’t beat the ride. Two years after he was suspended for two years, his suspension has been reversed. Yay, I guess?

    1. SHG Post author

      It’s not like a couple years of your life lost to litigation when you should be finishing college matters much anyway.

          1. Charles

            “First-chair representing accused in Title IX proceeding, including examination of witnesses; made offer of proof of evidence and testimony that successfully resulted in reversal on appeal”

          2. B. McLeod

            There is the stamp of bourgeois social accreditation, but apart, there is the education. Sometimes, it is only the course of decades that will tell which was of greater value.

            To see and to know what is real is of considerable usefulness, even if that reality is hostile or indifferent.

  4. Charles

    “an institution of higher learning, where American history and government are taught”

    Now that’s funny.

  5. Fubar

    California Second District Court of Appeal, at page 19:

    The accused must be permitted to see the evidence against him. Need we say more?

  6. Dan

    It really can’t be repeated enough: the requirements of due process are not sui generis rules that we made up just to give the defendant a sporting chance, but rather the basics that are required to fairly adjudicate a case. Similarly, the rules of evidence were not written simply to give lawyers something arcane to argue about (that’s what the Rule Against Perpetuities is for), but because they actually do lead to better evidence.

    1. Richard Kopf


      Indeed. (See, e.g., fertile octogenarian rule or as I like to think the rule against low T.)

      All the best.


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