THE EXPERT WITNESS: How college males lost their due process rights

By Michael G. Brock

“The jaws of power are always open to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.”
—John Adams, A Dissertation on the Canon and Feudal Law.

“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” 
—Massachusetts Constitution, Ratified 1780, Article XXX.  (Wording attributed to John Adams)

“...Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide. It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy. It is not true, in fact, and nowhere appears in history. Those passions are the same in all men, under all forms of simple government, and when unchecked, produce the same effects of fraud, violence, and cruelty...”
—John Adams, The Letters of John and Abigail Adams

On January 1, 2015, Senator Kirsten Gillibrand wrote an opinion piece in the Huffington Post, stating, “Last night at the President’s State of the Union Address, I was honored to invite as my guest Emma Sulkowicz, the Columbia University student who has inspired us all with her performance art piece “Carry That Weight” in which she carries her mattress everywhere she goes to symbolize the burden she carries every single day as long as her rapist is still on campus.”i 

On January 19, 2016, Fox News aired an investigative video titled, “The Truth About Sex & College, Fox News and Martha MacCallum examine the untold story of America's campus ‘rape crisis.’”ii  Sen. Gillibrand was interviewed for the piece and was asked why she continued to support Sulkowicz after her allegations against Paul Jonathan Nungesser had been rejected by both law enforcement and the campus quasi-judicial court.  Though the latter only required Sulkowicz to prove her case with a preponderance of evidence, she was unable to meet even this low burden.  But Gillibrand simply told MacCallum that she believed Emma.  Gillibrand has meanwhile been trying to make college campus courts—which exist currently only by executive fiat and the threat of withholding funding for colleges that refuse to comply with the administrations “suggestions”iii—more powerful through proposed legislation.iv

Nungesser probably doesn’t have a legal case against Gillibrand according to an opinion offered by UCLA law professor Eugene Volokh (“Man called a ‘rapist by Sen. Kirsten Gillibrand probably couldn’t win a libel suit,” Washington Examiner, 1/23/2015)v because she is simply offering an opinion that is different from the outcome of legal and extralegal decisions.  However, her support of Sulkowicz is disturbing because it represents a decision by one of the 50 most important lawmakers in the country to disregard a process that is in itself void of due process protections for the accused and heavily weighted in favor of the accuser, and to support the accuser simply because she chooses to believe that Sulkowicz is a victim.  She appears to be saying, “I refuse to believe the outcome of any proceeding that does not fit my preconceived notion of the truth.  And if we cannot obtain the desired outcome by executive overreach, we need to continue pushing unconstitutional legislation until we achieve the desired result.”

That college tribunals are unconstitutional in that they deny both due process protections and contradict Supreme Court rulings is hardly disputable.  On October 15, 2014, 28 present and former members of the Harvard Law School faculty published an opinion piece in the Boston Globe entitled, “Rethink Harvard’s Sexual Harassment Policy.”vi  The article states, in part:

“As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence, appropriate administrative decision-making, and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach. We also find the process by which this policy was decided and imposed on all parts of the university inconsistent with the finest traditions of Harvard University, of faculty governance, and of academic freedom.”

Not only are these rules inconsistent with our constitutional right to due process of law, existing legislation and supreme court rulings (see below), they have been imposed with a complete disregard for the freedom of thought and expression, and the academic autonomy necessary to foster that creative thought and expression.  The procedures adapted by Harvard:

“...lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

Among the objectionable components of the policy are:

“The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing;

“• the lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial;

“• the failure to ensure adequate representation for the accused, particularly for students unable to afford representation, [and],

“• adopting a definition of sexual harassment that goes significantly beyond Title IX and Title VII law.”

Importantly, the opinion notes the built-in sexual bias which holds male students responsible for the drinking behavior of female students, and for any ill-advised decisions they make while under the influence of alcohol.  In this way, it seeks to empower women while abdicating responsibility.  From a mental health perspective, this is the ideal way to produce sociopathic behavior; increasing power while decreasing accountability.  The policy does this by:

“Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students...”

“[Moreover] Harvard has pursued a process in arriving at its new sexual harassment policy which violates its own finest traditions of academic freedom and faculty governance, including by the following:

“• deferring to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community;

“• failing to engage a broad group of faculty from its different schools, including the law school, in the development of the new sexual harassment policy;

“• imposing its new sexual harassment policy on all the schools by fiat without any adequate opportunity for consultation by the relevant faculties...”

Esteemed as this list of legal scholars is, they are by no means the only group of experts to strongly disagree with policies fostered unilaterally by the Obama administration through tactics tantamount to extortion.  Another group of 26 law professors signed an open letter on 6/1/2016, providing more detail regarding the ways in which the 2011 “Dear Colleague” letter and it’s ramifications have undermined the constitutional due process protections of college males (and consequently all Americans), while also addressing the attack on free speech by the Far left in the name of political correctness.  The publication is entitled, Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault.vii

This letter states in part:

“Although both public and private institutions accepting federal assistance are required to comply with Title IX, only public institutions of higher education are required to assure free speech under the First Amendment or due process protections under the Fourteenth Amendment.viii These due process protections generally include notice of the “specific charges”ix and the opportunities to be heardx and present evidence on one’s behalf.xi Courts will not interfere with public university policies or sanctions as long as those policies and sanctions are supported by “some reasonable and constitutional ground...”xii

“...a cursory examination of...OCR [Office of Civil Rights]xiii documentsxiv reveals they frequently incorporate language such as ‘must,’ ‘require,’ and ‘obligation,’ without citing any regulatory or statutory basis. Furthermore, the OCR has instituted numerous compliance investigations against universitiesxv, compelling institutions to implement the policies and procedures prescribed in these documents.xvi...Several of these directives and enforcement actions have effectively nullified a landmark high court definition. In Davis v. Monroe, the U.S. Supreme Court defined ‘sexual harassment’ under Title IX as limited to conduct that is ‘severe, pervasive, and objectively offensive’ (emphasis added).xvii  Through a series of directives and compliance enforcement actions, OCR has dramatically expanded the Davis v. Monroe definition of sexual harassment, thereby exerting a direct and deleterious effect on campus free speech and due process:xviii

“A 2010 OCR Dear Colleague Letter (DCL) on bullying stated that ‘harassment does not have to . . . involve repeated incidents’ to be actionable. This Letter had the effect of voiding the Supreme Court’s requirement that conduct must be ‘pervasive’ in order to be considered as harassment.xix

“In 2011 OCR issued a Dear Colleague Letter on campus sexual assault, which the OCR considers to be a form of sexual harassment. This 2011 DCL curtailed a number of due process protections for students accused of sexual assault. Among other changes, the 2011 DCL mandated that college tribunals lower their standard of proof to preponderance,xx even though the Supreme Court has recognized that a low standard of proof is inappropriate in situations involving damage to one’s reputation. xxi

“The Task Force on Federal Regulation of Higher Education later singled out the 2011 DCL, noting that, ‘While OCR strenuously maintains that the letter does not add requirements to applicable law, the reality is these standards impose serious additional responsibilities and break new policy ground.’xxii  In a 2013 Letter of Findings to the University of Montanaxxiii OCR mandated that the University define sexual harassment broadly to include ‘any unwelcome conduct of a sexual nature.’ ‘Any unwelcome conduct’ can include verbal comments as well as physical actions. This broadened definition had the effect of requiring the university to disregard the Davis v. Monroe ‘objectively offensive’ standard.xxiv

“The cover letter that accompanied the Montana Letter of Findings described the agreement as a ‘blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.’  As a result, numerous universities across the country altered their policies to incorporate the Letter’s expansive definition of sexual harassment.xxv

“In a 2014 Resolution Agreement with Harvard Law School, OCR mandated that ‘the University has an obligation to consider the effects of off-campus conduct.’xxvi This Agreement was considered to be the legal basis for a subsequent probe by Northwestern University of a faculty member who had published an article in the Chronicle of Higher Education criticizing her university’s sexual harassment policy, an investigation the professor later termed, ‘My Title IX Inquisition.’xxvii

“OCR has initiated a series of high-profile compliance investigations. Currently, 228 investigations have been initiated at 181 universities across the nation.xxviii To this date, OCR continues its investigations, demanding that campus tribunals comply with OCR’s directives.”

The letter goes on to say that the detrimental effects of OCR overreach include impingements on free speech, including the obligation to investigate virtually any allegation of harassment, regardless of its objective merit (“micro-aggressions” or a “lack of safe space”), which are not amenable to being disproven in any legal sense, “free speech zones” and implemented speech codes banning words presumed to be offensive, while some campus advocates are now seeking immunity from criticism of their unlawful actions, including “limitations on expression criticizing or disagreeing with the protesters.”

Regarding disciplinary procedures, in addition to requiring institutions to lower the threshold by which a student’s culpability is determined to preponderance of the evidencexxix, OCR has “required campuses to allow complainants to appeal decisions,xxx (in contravention of OCR’s previous practice),xxxi disallow cross examination,xxxii restrict the role of legal counsel,xxxiii and to adopt broad definitions of sexual harassment.”xxxiv

“Unfortunately, OCR’s relentless pressure on institutions to respond aggressively to sexual assault allegations has undermined the neutrality of many campus investigators and adjudicators by forcing them to consider the broader financial impact of their actions. In an effort to preclude a costly Title IX investigation, some institutions interrogate accused students before informing them of the specific conduct code they are alleged to have violated xxxv and many deny them access to witnesses or potentially exculpatory evidence.” xxxvi

Recommendations for countering the detrimental effects of OCR overreach by the signatories include: “Clarify the legal status of OCR directives.  Directives that are deemed to be regulations need to be brought into compliance with requirements of the Administrative Procedure Act, including review and comment procedures...Reinvigorate free speech...Lawmakers should...enact legislation to replace the Education Department’s overly broad harassment definition with a narrower formulation, defining sexual harassment as unwelcome conduct aimed at victims based on their sex that is ‘severe, pervasive, and objectively offensive’ enough to interfere with access to an education...College administrators should move to revamp campus speech codes and sexual harassment policies so they are grounded in the [Davis v. Monroe] definition.”

“Restore due process protections...[including] informing students of the specific conduct at issue...providing them with access to all evidence...assuring students enjoy the assistance of an independent advocate...affording them the right to cross-examination...and utilizing the appropriate standard of proof.”

“Regarding allegations of criminal sexual assault, law enforcement should be informed of criminal violence so that, at a minimum, they may investigate, collect, and preserve evidence for potential future use. Whether the matter is prosecuted criminally should be a joint decision by the institution, complainant and criminal justice authorities, recognizing that the criminal justice system possesses greater investigative authority and expertise, can impose meaningful sanctions on perpetrators of felony-level crimes, and is less susceptible to bias than campus disciplinarians...”

“The federal Office for Civil Rights has ignored constitutional law, judicial precedent and Administrative Procedure Act requirements by issuing numerous directives, and then enforcing these directives by means of onerous investigations and accompanying threats to withhold federal funding. OCR has brazenly nullified the Supreme Court definition of campus sexual harassment. These unlawful actions have led to pervasive and severe infringements of free speech rights and due process protections at colleges and universities across the country. In defense of the principle of fundamental fairness, the undersigned law professors hereby call on state and federal lawmakers, college administrators, and OCR officials to move expeditiously to implement the recommendations enumerated above.

“Larry Alexander, Daniel Barnhizer, Elizabeth Bartholet, Stephanos Bibas, Burton Caine, D.A. Candeub, Teresa Stanton Collettk, Robert J. Cottrol, Alan Dershowitz, Charles Donahue, Donald A. Downs, Richard A. Epstein. Bruce P. Frohnen, Sheri Lynn Johnson, Richard Klein, Alan Charles Kors, Tamara Rice Lave, JD, PhD, Anne Lawton, Douglas B. Levene, Joyce Lee Malcolm, Michael McConnell, Richard D. Parker, David Rudovsky, Dan Subotnik, George C. Thomas, III, Arthur E. Wilmarth, Jr. June 1, 2016”

No one knows better than the legal community the danger i1nherent in this power grab by the executive branch of government that seeks to end run both the legislature and judiciary.  What is truly shocking and surprising is that no one in the legislature has had the chutzpa to stand up to it and speak out against it.  Even Republican Senators and former presidential contenders Lindsay Graham and Marco Rubio are co-sponsors of the Campus Accountability and Safety Act xxxvii being pushed by Far left Senators Gillibrand and McCaskill. 

I was too young to remember the McCarthy hearings, but I have seen the witch hunt atmosphere in the courts over the years whenever the accusation of sexual abuse is made.  Most of these allegations have been made against fathers who wanted to see their children, and, because in a sexual offense a man is guilty until proven innocent beyond all doubt, it is my belief that a substantial number have resulted in innocent men going to prison.  I also know from my professional experience that it has resulted in many good parents losing contact with their children. 

Now this disease has spread to college campuses and our legislature and executive branches of government, where it threatens to further poison our social and political structure.  It already has—witness the recent presidential election.  There is no way the right wing extremists would have a voice in American government were it not that so many people justifiably feel that they have been denied their most basic constitutional protections.  It disturbs me that Trump flirted with them for support and votes and that they see his victory as theirs.  However, I see the possibility of right-wing fascism gaining traction in this country as remote, whereas left-wing fascism is an immediate and present reality.  Our best legal minds are telling us this is the case.
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ihttp://www.huffingtonpost.com/rep-kirsten-gillibrand/carrying-their-weight-giv_b_6516630.html

iihttp://video.foxnews.com/v/4711634737001/?#sp=show-clips

iiihttp://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf

ivhttp://auburnpub.com/blogs/eye_on_ny/gillibrand-renews-push-to-combat-sexual-assaults-on-college-campuses/article_568a0970-be9c-11e4-863b-2754f8bbb574.html

v http://www.washingtonexaminer.com/article/2559161

vihttps://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html

viihttps://www.lankford.senate.gov/imo/media/doc/Law-Professor-Open-Letter-May-16-2016.pdf

viii Goss v. Lopez, 419 U.S. 565, 576, 581, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). 

ix Dixon v. Alabama State Board of Education, 294 F.2d 150, 158 (5th Cir. 1961) (“effective notice of the specific charges and grounds which, if proven, would justify expulsion.”) 

x Goss v. Lopez, 419 U.S. at 583. 

xi Dixon v. Alabama State Board of Education, 294 F.2d at 159 

xii Dixon v. Alabama State Board of Education, 294 F.2d at 157 

xiii Office of Civil Rights division of the Federal Department of Education

xiv Compliance recommendations to colleges

xv Nozicka, Luke, “SIY under U.S. Depatrment of Education Investigation for handling of sexual assault cases,” Daily Egyptian, May 8, 2016, http://www.dailyegyptian.com/news/article_a4e00818-1562-11e6-acad-47c2439d2217.html

xvi As an example of campuses’ reaction to OCR guidance, Cornell administrators and counsel both argued that the DCL ‘required the University to make immediate changes to its process for dealing with sexual assault accusations in order to
remain in compliance with Title IX ... If Cornell did not make the changes quickly, the administrators said, the University would be “out of compliance” and could be sanctioned by the Education Department.’ Linhorst, Michael, supra, note 15. Also see Halley, Janet, Commentary, “Trading the Megaphone for the Gavel in Title IX Enforcement; Backing off the hype in Title IX enforcement,” Harvard Law Review Forum, February 18, 2015, Harvard Law Review, Vol. 128:103 (2015), http://harvardlawreview.org/2015/02/trading-the-megaphone-for-the-gavel-in-title-ix-enforcement-2/ (Indeed, there is significant “pressure on schools to hold students responsible for serious harm even when — precisely when — there can be no certainty about who is to blame for it. Such calls are core to every witch hunt.”) 

xvii 18 Davis v Monroe County Bd. Of Ed., 526 U.S. 629, 651-653 (1999.)

xviii OCR’s May 9, 2013 settlement agreement with the University of Montana (Montana Agreement), http://www.justice.gov/sites/default/files/opa/legacy/2013/05/09/um-ltr-findings.pdf, (characterized by OCR as a "blueprint" for all schools.) 

xix October 26, 2010 Dear Colleague letter, supra, note 1 at p. 2. 

xx April 4, 2011 Dear Colleague Letter, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html . 

xxi Addington v. Texas, 441 U.S. 418, 424 (1979). 

xxii “Recalibrating Regulations of Colleges and Universities; Report of the Task Force on Federal Regulation of Higher Education” (HELP Report), February 2015, http://www.help.senate.gov/imo/media
/Regulations_Task_Force_Report_2015_FINAL.pdf.

xxiii May 9, 2013 Montana Agreement, supra, note 19. 

xxiv Kaminer, Wendy, “No Sex Talk Allowed; what’s wrong with the Obama administration's definition of sexual harassment,” The Atlantic, May 15, 2013, http://www.theatlantic.com/sexes/archive/2013/05/no-sex-talk-allowed/275782/ (Discussing May 9, 2013 Montana Agreement, supra, note 19, professing to be a “blueprint” for other schools. Kaminer called it “a mindlessly broad policy” and warned “If a student feels harassed, she may be harassed, regardless of the reasonableness of her feelings, and school administrators may be legally required to discipline her ‘harasser.’”) 

xxv Written testimony of Greg Lukianoff to the U.S. House of Representatives Committee on the Judiciary, June 2, 2015, http://judiciary.house.gov/_cache/files/cb2a2b82-2c21-4fa3-8a94-896c108c6b47/06022015-lukianoff-testimony.pdf  

xxvi Resolution Agreement between OCR and Harvard Law School signed on December 23, 2014, www2.ed.gov/documents/press-releases/harvard-law-letter.pdf 

xxvii Kipnis, Laura, “My Title IX Inquisition,” The Chronical Review, The Chronical of Higher Education, May 29, 2015, http://laurakipnis.com/wp-content/uploads/2010/08/My-Title-IX-Inquisition-The-Chronicle-Review-.pdf  

xxviii Nozicka, Luke, supra, note 16. 

xxix 2011 Dear Colleague Letter, supra, note 1 at p. 11 (“in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard”), and April 29, 2014, Questions and Answers on Title IX and Sexual Violence, supra, note 1. 

xxx 2011 Dear Colleague Letter, supra, note 1 at p. 12. 

xxxi Henrick, Stephen, “A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses,” Northern Kentucky Law Review Vol. 40, No. 1. (2013), http://www.saveservices.org/wp-content/uploads/2013/Final-Law-Review-Article.pdf

xxxii Bader, Hans, “No, OCR's April 4, 2011 Dear Colleague letter is not entitled to deference,” supra, note 10. 

xxxiii April 29, 2011 Questions and Answers on Title IX and Sexual Violence, supra, note 1 at p. 26. (“If the school permits one party to have lawyers or other advisors at any stage of the proceedings, it must do so equally for both parties. Any school-imposed restrictions on the ability of lawyers or other advisors to speak or otherwise participate in the proceedings must also apply equally.”) 

xxxiv 2011 Dear Colleague Letter, supra, note 1 at p. 3 (“Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature,”) and at p. 3, n. 9 (“Title IX also prohibits gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature.) 

xxxv Emmett, Shelby, “FIRE Briefs Congressional Staffers on Due Process,” FIRE, October 20, 2015, https://www.thefire.org/fire-briefs-congressional-staffers-on-due-process/

xxxvi Kruth, Susan, “‘Esquire Details Egregious Failures of Occidental Sexual Assault Case,” FIRE, March 27, 2015. https://www.thefire.org/esquire-details-egregious-failures-of-occidental-sexual-assault-case/  

xxxvii https://www.congress.gov/ bill/114th-congress/senate-bill/590
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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com.