Richard Epstein and John Yoo on OCR, Due Process, and Title IX

February 10, 2012

Over at Ricochet, law professors Richard Epstein of NYU and John Yoo of UC Berkeley have a podcast this week that is well worth a listen. Among other topics, Epstein and Yoo discuss the Department of Education’s Office for Civil Rights (OCR) and its harmful intrusion upon due process rights on campus through the April 4, 2011, "Dear Colleague" letter. The discussion, which begins around the 15-minute mark of the podcast, is enlightening and comes highly recommended.

For more from Epstein on these and related issues, you can read his piece, "Title IX or Bust," for the Hoover Institution journal Defining Ideas.

Of the "Dear Colleague" letter’s impact on the due process rights of those accused of sexual harassment or sexual assault, Epstein writes:

Secure in her invulnerable political position, Ms. Ali starts with the major premise that the procedures in question must afford "the complainant a prompt and equitable resolution" of the dispute. That framing of the issue gets her discussion off on the wrong foot, because the objective of any legal procedure is not to supply the complainant with that kind of protection, but at a minimum to ensure that both parties to the dispute receive fair treatment in the case.

Indeed, Epstein’s article parallels many of the same arguments FIRE has been making for nearly a year now:

There is little doubt that if the OCR had decided to try sexual harassment cases under these conditions, its actions would be on a collision course with the fundamental requirements of procedural due process, which commands that "no person shall be deprived of life, liberty or property without due process of law." That provision, found in the Fifth Amendment, is obviously much more concerned with the exposed position of the defendant than the protected position of the complainant. The situation is more emphatic in the Sixth Amendment, which starts out as follows: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State. . ." The Amendment also gives the accused the right to be "confronted with the witnesses against him."


The OCR concedes that the due process guarantees applies to all forms of state action, including its procedural diktats. But it nowhere explains why the protections under Title IX, all of which are imposed through administrative interpretation, rise to equal dignity with these unquestioned constitutional guarantees. The university sanctions could include suspension, expulsion, and loss of tuition.

Epstein’s entire piece is worth your time, so be sure to read it today.