U.S. Department of Education Formally Comes Out Against Constitutional Rights

January 1, 1970

It is a scary time to be on college campuses and not just because of COVID-19. In the last decade the U.S. Department of Education has prioritized the micromanagement of campus disciplinary procedures for students and faculty accused of sexual harassment. Despite having no business telling schools how to properly deal with alleged misconduct, the Department has consistently bullied schools into adopting specific types of disciplinary procedures, at the risk of losing their considerable federal funding. And the prevailing theme from the Department has been that these procedures must be fundamentally unfair to the accused.

NCLA client Dr. Mukund Vengalattore is one of the many victims of the Department’s policies. As I argued just two weeks ago before the Second Circuit Court of Appeals, after the Department threatened Cornell University with the loss of federal funding if it did not eliminate procedural protections for the accused (including the presumption of innocence), a graduate student who had been dismissed from Dr. Vengalattore’s program exploited the system to ruin Dr. Vengalattore’s career with a preposterous and false allegation.

While the previous administration paid lip service to this problem and made some arguably positive steps toward protecting the basic rights of students and faculty, the Biden Administration has wasted no time in making it clear that it will go after schools if they attempt to provide students or faculty with their basic constitutional rights.

As I’ve written before, much of this mess started in 2011 when the Department, through its Office of Civil Rights (OCR) sent a “Dear Colleague Letter” to educational institutions. This and related documents decided, with no basis in existing law, that colleges were no longer allowed to provide accused students with basic constitutional protections, like the chance to see the evidence against them or question their accusers. The result was that schools across the country promptly eliminated these protections and rigged their disciplinary systems to make sure that anyone would be found responsible for misconduct, regardless of whether the accusations had any legitimate basis. And that was precisely how Dr. Vengalattore was punished by Cornell for failing to definitely disprove an accusation that was never even explained to him.

Former Secretary of Education Betsy DeVos gave people reason to hope, however, and recognized that scores of students were denied “due process” and “fundamental fairness” as a result of this informal lawmaking. Secretary DeVos rescinded the Dear Colleague Letter, and related documents, and then issued a rule requiring colleges to adopt some very minimal protections for the accused.

That rule will prove to be short-lived, however, and the new administration has renewed the all-out war against procedural fairness. On March 8, 2021, President Biden issued an executive order directing the Department to “review” its campus adjudication rule, “consider suspending, revising, or rescinding” the rule, and, just in case we missed the point, “issue new guidance” on the issue.

While the order was ultimately noncommittal about whether the rule would be rescinded, on April 6, 2021, OCR followed up with a public letter that resolved any doubt. OCR announced that it “anticipates publishing in the Federal Register a notice of proposed rulemaking to amend the Department’s Title IX regulations.” OCR almost certainly will rescind the DeVos rule, and, likely, will formally prohibit colleges from protecting the rights of the accused.

But how can I be so sure?

OCR is now run by Suzanne Goldberg, who is a well-known critic of procedural fairness for the accused. Goldberg objected to the Title IX rules when they were issued in an op-ed, entitled Keep Cross-Examination Out of College Sexual-Assault Cases. In case the title was too subtle, she argued that a requirement that students be cross-examined during sexual misconduct disciplinary hearings could be “trauma-inducing” for accusers. “Campuses are not courtrooms,” she wrote, and thus she advocated for eliminating due process that one would expect in a courtroom.

And despite her strong anti-process stance, Goldberg is not a strong enough advocate for unfairness for many who wish to further weaponize Title IX adjudications. Indeed, Goldberg took flak from some opponents of due process because she “oversaw” Columbia University’s disciplinary process while she was an administrator there because Columbia was perceived as having provided too much fairness to accused students. With this kind of pressure coming from the left, we should be concerned that Goldberg’s documented anti-fairness stance will only get worse.

What seems to be lost on Goldberg, the Department, and the President himself, is that the government’s position is an express repudiation of constitutional guarantees. Courts have held cross-examination in campus hearings is constitutionally required. As Judge Amul Thapar wrote for the Sixth Circuit, “Due process requires cross-examination in circumstances like these because it is the greatest legal engine ever invented for uncovering the truth.” Or, as Justice Amy Coney Barrett wrote while she was still on the Seventh Circuit, cross-examination is an essential part of due process in campus discipline because in many cases it is the only way to tell if someone is telling the truth. “[I]n a case that boil[s] down to a ‘he said/she said,’ it is particularly concerning that” and adjudicator can conclude that the accuser “was the more credible witness—in fact, that she was credible at all—without ever speaking to her in person,” much less “to even question [witnesses] to probe whether [other] evidence was reason to disbelieve” the accuser.

Despite the settled law on this issue, the Department has again become committed to doing whatever it can to violate the constitution. No matter the issue, we should all be deeply troubled when agencies act like this.

So what happens now?

When administrative agencies violate constitutional rights, often the only thing to do is sue them. NCLA has already sued the Department, of course, but the Department has tried to dodge its responsibility by arguing that Secretary DeVos’s rule fixed the problem. That’s now going to be a tough position to maintain.

But the tragedy is that every lawsuit will represent one more person whose life has been ruined by a rigged process explicitly designed only to punish, regardless of innocence.