Gillibrand Revised — Still No Due Process

March 3, 2015

By KC Johnson at Minding The Campus

The Chronicle quotes New York senator Kirsten Gillibrand celebrating the revised version of the Campus Safety and Accountability Act (CASA), introduced last week, on a an expanded bi-partisan basis (up from eight co-sponsors to twelve), to the Senate. Rejoiced Gillibrand, “”The bill actually has clarified rights for the accused,” since the current system “doesn’t serve the accused.”

The celebration of fairness for the accused seems a little out of place for Gillibrand. After all, this is a senator who in two official statements posted on her website referred to a resident of her state as a “rapist,” even though the affected student, Paul Nungesser, had been found not-culpable by Columbia and was not even charged by police. Clearly Gillibrand’s definition of due process differs from that of, say, a typical civil libertarian.

In any case, FIRE’s Joe Cohn took a look at the bill. In 51 pages, it contains a mere two references to due process for the accused. Here’s Cohn: the bill “provides both students with notice of the charges and sufficient time to ‘meaningfully exercise the due process rights afforded to them under institutional policy.’” The phrase meaningfully exercise isn’t defined. This is what Senator Gillibrand thinks is a good deal for the accused.

The bill also repeatedly refers to students who level allegations of sexual assault as “victim” or “victims”—even though, of course, at a pre-adjudication stage there’s only an accuser or an alleged victim, not a victim. For instance, here’s how the bill describes rights afforded to the accuser in the original intake interview: “The victim shall be given the option to have the interview recorded and to receive a copy of the recorded interview.” How did the senators decide the accuser was already a “victim”? Did they use the Gillibrand rule, that accusers must be assumed to be truthful?

The bill also seeks to mandate colleges creating a “confidential advisor” for the “victim”—again, presuming that the accuser is automatically a victim—while ordering no comparable personnel assistance for the accused. This provision would seem to be, on its face, both a Title IX violation and a contradiction of the demands of the “Dear Colleague” letter, which argued that creating procedure only open to the accused (the ability to appeal) constitutes a Title IX violation. In this respect, the renewed CASA encapsulates the anti-due process advocates basic approach to Title IX issues—if the measure can be used to weaken due process protections, it should be employed. Otherwise, it can be ignored.

Gillibrand and co-sponsor Claire McCaskill have distinguished themselves over the past two years for their hostility to anything approximating due process for students accused of sexual assault. But it’s worth noting thatsix Republicans—Chuck Grassley, Marco Rubio, Dean Heller, Kelly Ayotte, Shelley Moore Capito, and Roy Blunt—co-sponsored this bill. While the Obama administration has taken the lead in seeking to eviscerate campus due process, House and Senate Republicans have more than willingly gone along.

This record makes all the more remarkable a letter last week from two members of the U.S. Commission on Civil Rights. Gail Herriot and Peter Kirsanow wrote the chairs of the House and Senate appropriations committees urging them to reduce OCR’s funding, giving the agency’s recent record of lawless behavior. Regarding allegations of sexual assault on campus, the commissioners expressed skepticism about OCR’s authority to “strongly discourage[] cross-examination of accused students by their accusers.” Nowhere, they correctly noted, “”in the text of Title IX or in earlier OCR regulations can . . . a requirement [for schools to use the preponderance of evidence threshold] be found.” Colleges should work with police rather than undertake criminal investigations, the commissioners reasoned. Their conclusion? “OCR has pushed past the limits of its legal authority in addressing sexual assault and harassment on college…campuses.”

Herriot and Kirsanow accurately concluded that absent congressional oversight, OCR seems unlikely to be challenged. Schools themselves rarely (if ever) resist, meaning that “courts never have the opportunity to rule OCR’s guidance out of bounds.”

The Republicans have controlled the House for more than four years. Will the commissioners’ letter provide an opening for—at the least—an oversight hearing regarding OCR’s tactics and agenda?