Earlier this week, we wrote that the Biden Administration is seeking to reimpose Obama Administration kangaroo court practices for dealing with sexual harassment charges, and to go them one better in imposing the administration’s ideology of sexual relationships and gender identity. We included a link to Legal Insurrection’s comment letter.
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The senators think gutting due process rights is a wonderful idea. They wrote:
And we applaud the Department’s proposed rule for removing the DeVos rule’s requirement that colleges and universities have a live hearing with cross-examination for allegation of sexual harassment and have a separate decision maker. The harmful live hearing and cross-examination process, which is wholly unnecessary to determine what happened in a particular incident, re-traumatizes survivors who have already been abused, harassed, and discriminated against and unfairly provides an advantage to the more resourced party.While the proposed rule eliminates the blanket requirement to have a hearing and live cross-examination, we ask that the Department provide additional guidance on how colleges and universities can minimize reliance on cross-examinations. We ask that the Department outline additional safeguards on how colleges and universities make a credibility determination. In addition, we ask the Department to remove the presumption that the respondent is not responsible for sex discrimination until a determination is made. This presumption is not required in any other type of school proceeding and perpetuates the harmful and false stereotypes that those who report sex-based harassment are being untruthful. (citations omitted)
Got that? Who needs cross-examination and presumption of innocence – they’re harmful to the victim! It reminds me of something Justice Scalia wrote in his Crawford v. Washington opinion:
Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.
While university administrative proceedings are not state criminal charges, they carry (as we wrote in our comment letter) “high stakes for the accused such as potentially being branded a rapist and expelled from college.” Students facing charges of this nature (especially at public universities) are entitled to due process protections; cross-examination of the complainant and presumption of innocence are essential to that.
The senators also applaud the federal government’s undue intrusion into gender ideology.
We applaud the proposed rule for explicitly stating that discrimination on the basis of sex in education includes discrimination based on sexual orientation, gender identity, sex stereotypes, or sex characteristics (including intersex traits), consistent with the interpretation of the Supreme Court decision in Bostock and federal anti-discrimination laws. This explicit inclusion of sexual orientation, gender identity, and intersex traits advances the promise of equality for all. We hope the explicit inclusion of LGBTQIA+ students in the Department’s articulation of Title IX’s protections will help address the recent onslaught of discriminatory legislative attacks on transgender and nonbinary students. These efforts range from criminalizing gender affirming care, to banning discussions about LGBTQIA+ identities in schools, to denying trans students access to bathrooms and locker rooms matching their gender identities.We urge the Department to clarify the scope of prohibited discrimination. Specifically, we recommend the rule address that students must be housed consistent with their gender identity and specify that intentional misgendering is a form of harassment. In doing so, we ask the Department to specify what treatment amounts to a violation of Title IX. We also urge the Department to move forward with proposed rulemaking to address students’ eligibility to participate in athletics. (citations omitted)
In other words, the senators want to force schools to house people with a penis and testicles who “identify” as female in girls’/women’s dormitories. That will be as helpful as Loudon County’s forcing schools to let physiological boys use the girls’ bathroom. Furthermore, they want to force schools to let athletes compete on the team of their choice. You’re physiologically male, and went through puberty as a male? Welcome to the women’s team! Roll over, East German women’s swim team – we’ll do you one better! The senators are also outraged by recent “efforts… criminalizing gender affirming care” – in other words, by efforts to prevent doctors from ripping sexual organs out of minors, or filling their bodies with drugs to prevent them from going through puberty.
Getting back to due process. Perhaps our heroic senators should advise universities in their state to dispense with same whenever they are sued. Take Brown University, for example. On September 9, a student sued the school for suspending him for a semester after what he describes as a sham hearing on a sexual assault charge. The student claimed he wasn’t given cross-examination rights or an impartial factfinder.
Also as related by the student (Brown hasn’t filed any written response), the factfinder concluded that there was no consent at least partly because Smith (the name is an alias) failed to ask the woman every few minutes whether she wanted to continue having sex with him. Imposing sexual mores under the threat of wrong-thinking people being found guilty of sexual assault is precisely what DOE’s proposed rules seem designed to do.
Perhaps Rhode Island’s senior Senator Jack Reed, who co-signed the comment letter, would like to look into the case? Maybe he should explain to Brown that it doesn’t really need a hearing or cross-examination rights? After all, they’re “wholly unnecessary to determine what happened in a particular incident.”
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