Opinion: Title IX investigations are medieval in their lack of due process

  

By Rep. Dean Dohrman

What sets the United States apart from many other countries is the emphasis that government works for the people, not the other way around. Very early in our existence this became standard for all citizens in the Bill of Rights, but unfortunately, not everyone reveres these rights as sacred.

Emerging from the English tradition, American patriots were cautious to preserve their freedoms. They knew the dangers well, as kings were known to lock people in a room, such as the Star Chamber, to defend themselves against charges they did not fully comprehend without a right to face their accuser. Parliament abolished the tribunal in 1641, and Americans were determined they would not follow suit in their new country. They therefore enacted the 4th, 5th, 6th, 7th, and 8th Amendments, all ensuring that certain rights would remain for them and their posterity.

Central to individual protection under the law in the Bill of Rights is the 5th Amendment and its provision of due process. The right to face your accuser, to be presented with the evidence against you, the right of appeal, and most importantly, the presumption of innocence until proven guilty are embodied in this constitutional concept. Past generations were so supportive of this principle of due process they repeated it in the 14th Amendment to make certain that individual states upheld this fundamental principle. However, something happened under the Obama administration that has threatened this bedrock of the American legal system.

Title IX became an issue because of the Dear Colleague letter produced by the Obama administration in 2011. The letter targeted investigations on sexual assaults claims made on college campuses, and threatened ominous consequences if results were not obtained. As a result, the system became streamlined, often with the removal of due process from these proceedings. If you are unfamiliar with this process, many Title IX proceedings mirror the Star Chamber: the accused will be called in without prior notification of the charge, no specific allegation will be written, the accuser will not appear, there is no cross-examination, and no legal counsel is allowed to be present if a cross-examination occurs. In response to these late medieval litigation procedures, I have filed HB 573 to make certain this short-circuit of justice is short-lived.

Proponents of the Obama provisions argue that these measures are necessary to achieve justice in sexual assault and harassment cases. To have the accuser subjected to cross-examination would be problematic, as the defendant has no clear ability to defend him/herself. Often, they are given the “opportunity” to leave school without further action. The problem here is trying to re-enter school elsewhere, which puts a damper on trying to ignite a career. And the cost to go to court and fight the allegation is in the neighborhood of $250,000. Talk about student debt!

Fortunately, U.S. Education Secretary Betsy DeVoss has proposed changes to right the wrongs of the Obama-era proceedings. The problem is that these rules are not permanent. Down the line, another administration may go back to the Obama administration’s favoring of denying due process. As a consequence, this legislation is long overdue and is being filed to put an end to the circumvention of legal protections which have become prevalent in Title IX cases. In these administrative tribunals, basic rights, such as cross-examination, the right to face your accuser, the right to a copy of the actual complaint, the right to present evidence including testimony from witnesses, and the right to active legal counsel will be restored.

The rights of due process are worth preserving. Justice is a balance, but at the moment, balance has been lost in Title IX cases. My bill does not plow new constitutional ground, it simply re-states protections which every American expects and deserves. The recent confirmation hearings for Justice Brett Kavanaugh should have demonstrated to us that America will become a very scary place for everyone if we simply accept every allegation that is made as truth.

HB 573 applies due process to both sides equally, so the legislation does not favor the complainant or the respondent in a Title IX case. When an allegation of sexual assault/harassment is made, the stakes are high for the accused. Expulsion or suspension along with the scarlet letter of being accused of sexual misconduct can destroy a young person’s career and carries life-long consequences. Under this legislation, if the complainant doesn’t believe the university will take their complaint seriously, they can request a hearing in front of the Administrative Hearing Commission instead of the school’s tribunal.

For justice to be served, due process must be applied. This right is not merely an option for the select few. These protections must be in state statute to ensure they cannot be changed at bureaucratic whim. Our college students deserve the same rights as everyone else in society when allegations of sexual misconduct are made. After all, they are our future.

Dean Dohrman serves as a representative in the Missouri House and is the author and sponsor of HB 573.