Why Pennsylvania Attorney General Josh Shapiro decided it was his place to get into the mix is unclear. Maybe it was just too easy to hop on the Woke Train and get a free ride. Maybe he didn’t want to be left out of the “coalition” of states’ attorney generals who couldn’t manage to clean up the mismanagement (like the thousands of rape kits that go untested for years) of the handling of sex offenses in their states’ criminal courts, and found it easier to grab at low-hanging fruit.
Attorney General Josh Shapiro, together with the Attorneys General of New Jersey and California, yesterday led a multistate coalition of 19 Attorneys General in submitting a formal, legal comment letter to Secretary Betsy DeVos and the U.S. Department of Education calling on federal officials to withdraw a proposed rule that would undermine the anti-discrimination protections of Title IX of the Education Amendments Act of 1972, and weaken protections against sexual harassment and violence for students. The proposed rule would impose new requirements on schools and students that would be a significant departure from the fundamental purpose of Title IX and the Education Department’s longstanding Title IX guidance, and leave campuses less safe.
That the new rules would be a “significant departure” was pretty much the point. The irony of “longstanding” meaning starting in 2011 when they were invented out of whole cloth by a bureaucrat eludes Shapiro. That inclusion of some basic due process “leaves campuses less safe,” however, isn’t merely the repetition of the vapid slogan of sad advocates, but a threat by attorneys general.
The “coalition” submitted a lengthy comment of 71 pages, which suggests they have a bit of extra time on their hands having managed to fix all their state issues so that they can now focus on federal rules. But the thrust of their arguments coming from AGs isn’t merely childish, but disconcerting. They are arguing against the value of due process, fundamental fairness for the accused male student. But slipped in there is an argument rarely seen, and never by an attorney general. There should be no presumption of innocence.
B. The Presumption of Non-Responsibility Improperly Tilts the Process in
Favor of the Respondent.
The proposed rule states that there is a “presumption” that the respondent is “not responsible” for the alleged sexual harassment. §§ 106.45(b)(1)(iv) & (b)(2)(i)(B). The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate. Relatedly, but more fundamentally, the presumption contradicts the regulation’s stated goal of promoting impartiality by inherently favoring the respondent’s denial over the complainant’s allegation. Instead the allegation and the denial must be treated neutrally, as competing assertions of fact whose truth can only be determined after an investigation. The problem would be even starker if any final regulation were to retain recipients’ ability to choose a “clear and convincing” evidence standard (which we contend is not appropriate). The presumption of non-responsibility and the “clear and convincing” standard of evidence likely would, in practice, compound one another and raise an exceedingly high bar to any finding of responsibility for sexual harassment.
Accordingly, there should be no presumption regarding the respondent’s responsibility.
In the scheme of sophistry, this is pretty big. The presumption of innocence, or “non-responsbility” as it’s euphemistically called here, is little more than the flip-side of the burden of proof. If the burden isn’t met, then who wins? But there is an additional prong, that the “winner” isn’t ascribed the title of “rapist” who beat the rap, even though that’s pretty much the way it goes anyway.
The presumption has long been reduced to a legalism in the mind of the public, that the cops wouldn’t arrest someone if he wasn’t guilty. That prosecutors wouldn’t prosecute someone who wasn’t guilty. To many, the burden is on the perp to prove his innocence, or he’s guilty but got lucky. The concept of it being a bit problematic to prove a negative isn’t one that people tend to spend much time thinking about. Why bother when everybody knows the guy is guilty?
But the argument proffered by the attorneys general is shockingly weak:
The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate.
This is a non-sequitur. The argument, which no one makes but certainly should, that the criminal law presumption should apply, as this is no “grievance procedure” but a subconstitutional criminal prosecution that has consequences more severe than the vast majority of crimes, compels the presumption to apply. That it’s not, at least as argued by the AGs, a criminal case has no rational bearing on whether the presumption should apply.
The question, at best, would then turn to whether the purposes for the presumption apply to these proceedings as they do to criminal cases. They can’t be bothered to make a cogent argument, but then the sad advocates to whom their comment is really addressed won’t complain about their failure of logic.
But the fact that this comes from attorneys general, whose responsibility bears some relation to constitutional rights as well as the jurisprudence upon which they exist, raises a secondary, more nefarious problem. They are arguing throughout their letter, often disingenuously such as when they ignore the caselaw requiring hearings and some means of confrontation when facts are in dispute, against the basic premises of due process.
The AGs are arguing that due process is an evil that should be eliminated on campus because it makes woman “unsafe.” Even worse, they are arguing that an accused male student shouldn’t be presumed innocent of rape before the burden of proof, whatever that might be, is sustained. The ploy, that someone can be accused of rape but “considered neutrally” is absurd, and they, as lawyers, certainly know this.
Just as due process has been vilified in this process to assure the men lose, the presumption of innocence is now the target of the AGs’ rhetoric. Having already reduced due process to the enemy of women with astounding success, is the presumption of innocence now in their crosshairs? It’s not just the impact on the woke psyche on campus, but as legal concepts are undermined in the mind of the public, it filters through the system. Won’t that be convenient for the AGs?