Due Process 101 As Taught by Uncle Sam

Bob Barr
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Posted: May 04, 2016 12:01 AM
Due Process 101 As Taught by Uncle Sam

The principle that every person in the United States is entitled by right to “due process of law,” is so firmly embedded in the legal and cultural fabric of our society, that it hardly bears reminding. Yet, if you happen to be a male student at any college or university that receives federal funds, and an allegation of sexual misconduct has been levelled against you, you quickly realize that “due process” is a luxury you no longer enjoy.

Thanks to the Obama Administration’s effort to institutionalize political correctness throughout our nation’s education system, “due process” for male college students has been redefined out of the college curriculum. Now, according to Due Process 101 as taught by the United States Department of Education, male college students are no longer “innocent until proven guilty”; they are simply “guilty if accused,” and “due process” is a one-way street favoring the accuser not the accused.

Two parents, however, have decided to take on the Obama Administration, and to give it a lesson in constitutional “due process.” Last month in my home state of Georgia, State Representative Earl Ehrhart and his wife, parents of a son who attends Georgia Tech, filed a Complaint in federal court in Atlanta.

The Ehrharts’ ground-breaking Complaint states that the U.S. Department of Education acted unlawfully and unconstitutionally when it asserted in a 2011 “Dear Colleague Letter” addressed to schools receiving federal dollars, that allegations of “sexual harassment” by a college student at any school receiving federal funds must be handled in such manner as to make it next to impossible for a male student thus charged, to defend himself. The threat to cut-off federal monies to any school not complying with the Dear Colleague Letter was thinly-veiled.

The Complaint describes how the Department of Education “has aggressively dictated how colleges and universities handle sexual assault and sexual harassment on campus,” and created a veritable kangaroo court for such crimes “based on the excessively low ‘preponderance of the evidence’ standard . . . as opposed to the ‘clear and convincing evidence’ standard traditionally used in college disciplinary hearings.” The consequence of these changes, the Ehrharts note, is “causing schools to brand more students ‘rapists,’” and placing further restrictions on the due process rights of the accused.

Sexual assault – whether on-campus or off -- is a serious crime; and allegations of such need to be taken seriously, investigated thoroughly, and prosecuted where warranted. But there is a right way and a wrong way to pursue justice; a process that should not depend on whether or not a suspect is a student at a school receiving federal funds. The appearance and the substance of constitutional due process must be maintained for both the victim and the accused.

However, in the Bizarro World system of justice being pushed by the Obama Administration, the focus now is on simply making it as easy as possible to get a guilty verdict once an allegation of “sexual harassment” (defined very broadly) has been made. For male students accused of such conduct, the road to redemption is much like that traveled by thecharacter Andy Dufresne in the movie The Shawshank Redemption -- a harrowing crawl to freedom that is exceedingly difficult, dirty, ugly, and something that will forever haunt them.

Male students are not the only victims in this drive for “social justice.” Ultimately, it is the American taxpayer who winds up footing the bill for each college and university having to establish a multi-tiered system by which to run roughshod over the rights of these students. Taxpayers must also pay the often massive legal fees incurred by the schools to defend the many lawsuits brought by families of students who had their lives ruined after being falsely accused in such a system. As noted in the journal, Insider Higher-Ed, several dozen such lawsuits are currently pending against universities by those wrongly accused.

As detailed also in the Ehrharts’ Complaint, the result of the undermining of fundamental due process on college campuses by the Obama Administration, is made worse by the fact that these changes should not have been implemented as they were in the first place. Rather than announce its plans in 2011 as standard rulemaking proposals -- according to which public input is solicited and considered in a transparent and public process -- the Department of Education rammed its plan through as a “Dear Colleague” Letter, with no meaningful opportunity for colleges or universities (or any other interested parties, for that matter) to comment.

Where the Ehrharts’ lawsuit goes from here, and whether other suits will follow, remains to be seen. However, at the very least, this courageous couple is setting an example for others, by standing up to bureaucratic bullies who seek to vilify male college students and undermine our Bill of Rights on the altar of political correctness.