U. S. Secretary of Education Betsy DeVos vow to bring due process and the rule of law back to Title IX investigations of sexual harassment “triggered” much predicable criticism from equally predictable critics, such as former Vice President Joe Biden.
What her detractors avoided discussing were the Title IX rules and practices in place at the Department of Education. Indeed, courts have found the Obama Administration’s guidelines on “sexual assault” cases to be on shaky legal ground at best. “Those procedures mandated by the Department’s ‘guidance’ are so slanted that when members of Harvard’s law faculty got hold of them, they issued a letter that criticized them as ‘overwhelmingly stacked against the accused,’ George Leef points out in an article in Forbes. “And when a judge looked at the procedures in a case where an expelled student sued, he sarcastically asked the lawyers defending the school, ‘When I finished reading all the briefs in this case, my comment was, “Where’s the kangaroo?’” (That case and many others are recounted in Professor KC Johnson’s recent article in Commentary.)”
In that article, Johnson notes that “In late August, U.S. District Judge Michael Barrett blocked Miami University from suspending a student the school had found guilty of sexual assault.”
“The student claimed that his due-process rights had been violated by Miami University’s fact-finding process. This process had featured a proceeding in which all the witnesses corroborating the accuser’s claims had refused to appear—and at its conclusion the chair of Miami’s disciplinary panel simply accepted their unverified statements as ‘true.’”
“When the case reached federal court, university lawyers argued that cross-examination of the absent witnesses was irrelevant because the accused student was allowed to say that he disagreed with their claims. The university, Barrett responded, misunderstood the importance of cross-examination for assessing witness credibility.”
“Miami’s ‘claim that no amount of cross-examination could have changed the minds of the hearing panel members,’ the judge concluded, ‘arguably undercuts the fairness of the hearing.’ The ‘arguably’ was a nice touch.”