The DeVos revision of sexual-abuse rules will reveal who stands where on due process.

By Daniel Henninger | WSJ | Sept 13, 2017

In the annals of American justice, it will be hard to exceed what the Obama administration tried to do with its Title IX guidance letter in 2011. The letter from the Department of Education—most ironically, from its Office of Civil Rights—effectively eliminated centuries of due-process rights at every institution of higher learning in the U.S. That transgression is about to end.  

Education Secretary Betsy DeVos is expected to rescind the rules imposed by the 2011 letter in the next week or two. In advance of formal rule-making, according to senior officials, the department will issue interim guidance on handling campus sexual-abuse cases.

On the crucial issue of evidence, the interim guidance will permit schools to immediately adopt the higher “clear and convincing” standard of proof. It will tell schools they should give equal legal treatment to both parties in these cases, as in the calling of witnesses or the presence of attorneys.

Formal rules will emerge after a public notice-and-comment period, which is the federal rule-making requirement President Obama’s appointees tossed aside. . .

On the crucial issue of evidence, the interim guidance will permit schools to immediately adopt the higher “clear and convincing” standard of proof. It will tell schools they should give equal legal treatment to both parties in these cases, as in the calling of witnesses or the presence of attorneys. . .

By now most institutions want a modus vivendi on this issue to replace what had become a crudely run jihad by left-wing lawyers in the Obama Education Department and the network of ideological enforcers their order created on the nation’s campuses . . .

By now most institutions want a modus vivendi on this issue to replace what had become a crudely run jihad by left-wing lawyers in the Obama Education Department and the network of ideological enforcers their order created on the nation’s campuses.

Indeed, after Mrs. DeVos’s speech last week announcing her intention to rescind the rules, it was striking how muted the public opposition was. Among what’s left of serious minds in academia, there was an awareness that something here had gone waaaay off the rails. Faculty at both Penn and Harvard law schools had already issued statements decrying the Obama sexual-abuse rules as fundamentally unfair to the accused.

It is difficult to express what a big deal this is—or should be. Basic due process guarantees have existed in English-language law since they were embedded in the King John’s Magna Carta in 1215. The U.S. Constitution’s Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel.”

One has to ask: How in 2011 did this rule roll out of the Obama Education Department and become the law of the land in academia without so much as a peep of outrage from them or the American press? Imagine the revolt if an administration attempted to impose on every U.S. newspaper such a sweeping dilution of the First Amendment. Donald Trump’s mere accusation that the press is fake news has produced a nonstop death struggle between the media and White House . . .

The creation of an atmosphere on campus akin to the Salem witch trials was the result of Mr. Obama’s explicit policy choice to manipulate bedrock legal principles for a political goal. After the DeVos speech last week, former Vice President Joe Biden denounced “any rollback of Title IX protections.” Thus, demoting due process standards is now Democratic dogma. . .

Read the entire report by Daniel Henninger in the WSJ

Addendum
Substantive due process, in United States constitutional law, is a principle allowing courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the US Constitution. Courts have identified the basis for such protection from the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of “life, liberty, or property, without due process of law.” Substantive due process demarcates the line between the acts that courts hold are subject to government regulation or legislation and the acts that courts place beyond the reach of governmental interference. Whether the Fifth and/or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent.^[1]

Read the entire discussion of due process at https://en.wikipedia.org/wiki/Substantive_due_process

Editor’s Note: We hope this also transforms hospital abusive Peer Review in which attorneys are not allowed, also akin to Salem Witch trials, or Kangaroo Court, in which physicians are accused of medical errors, despite outside supportive medical reviews of no errors, decisions are made aforehand, doctors lose their Medical Licenses, their practice terminates and their income stops, frequently lose their spouse, family, and are doomed to the National Practitioner Data Bank, the permanent tomb for physicians depriving physicians of “life, liberty, and property, without due process of law,”

The median four-year cost of medical school (including expenses and books) was $278,455 for private schools, and $207,866 for public schools in 2013 according to the Association of American Medical Colleges. (Thus, abusive PEER REVIEW may cost a loss of a quarter million dollars that was invested by the physician and his family to obtain this valuable property.

A kangaroo court is a judicial tribunal or assembly that ignores recognized standards of law or justice, and often carries little or no official standing in the territory within which it resides. The term may also apply to a court held by a legitimate judicial authority who intentionally disregards the court’s legal or ethical obligations.

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