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Biased Anti-Bias Regulations

Anti-bias regulations are sometimes biased and at odds with civil liberties. The Cato Institute’s Walter Olson gives a recent example from a left-leaning region in Spain:

The separatism-minded Spanish region of Catalonia has enacted a law under which “the person accused of homophobic acts will have to prove his innocence, reversing the presumption of innocence until proven guilty.” [El Pais, TheLocal.es] The law includes fines for anti-gay occurrences in the workplace. Advocates defended the shifting of the burden of proof onto the accused to prove innocence as a “positive discrimination measure [that] is already in place for other offenses, such as domestic violence against women, in instances when it is very difficult to prove.” [VilaWeb]

Never mind that European human-rights provisions say that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” People accused of bias are apparently deemed so awful that they can be stripped of universal human-rights protections (as are those accused of domestic violence).

In America, the Education Department is moving in the same direction, although it is doing so without any legislative authorization. Citing federal laws such as Title IX and Title VI of the Civil Rights Act, the Education Department’s Office for Civil Rights, where I used to work, is issuing “Dear Colleague” letters demanding that schools restrict due process and stop being evenhanded in discipline. Its demands are not only reducing the due process rights of accused people, but also are undermining fairness and accuracy in adjudications (and eroding free speech as well).

In the United States, some colleges now operate a two-track system, in terms of the burden of proof. In ordinary offenses, they apply a clear-and-convincing evidence standard, and allow the accused protections like prior disclosure of the evidence against them (and sometimes allow the accused to personally cross-examine the complainant if the accused cannot afford counsel). But in cases of alleged sexual harassment, assault, and gender-related offenses, they apply a meager “preponderance of the evidence” standard, bar any cross-examination by the accused, and often deny the accused meaningful access to the evidence against him needed to prepare a defense.

The Education Department has caused this inequitable result, through a misinterpretation of the federal sex discrimination law Title IX. The Education Department’s Office for Civil Rights takes the erroneous position that the clear-and-convincing evidence standard is banned by Title IX, that interim measures against the accused should take place before any finding of guilt, and that adjudications and appeals should be done so quickly and with so little scrutiny of the complaint that basic protections for the accused often become impossible to provide. A White House task force demanded this year that accused people not be able to cross-examine their accusers, even though court rulings occasionally require that opportunity in campus cases like Donohue v. Baker.

I earlier explained why the Education Department’s change in the burden of proof was illegal, and wrongly ignored the notice-and-comment requirements of the Administrative Procedure Act.

The Education Department disregards the fact that, as James Picozzi noted in 1987 in the Yale Law Journal, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987)).

The Education Department’s demand for interim measures (against innocent students accused of sexual harassment or assault who have not yet received a disciplinary hearing) is a violation of due process, as I earlier explained in The Daily Caller, and at greater length at this blog.

The Education Department also undermines due-process and equal-protection guarantees through its recent promotion of de facto racial quotas in school suspensions, which misinterpret the federal race-discrimination law Title VI, as I explain at this link.

Such racial quotas violate the Constitution and the court ruling in People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997). They also ignore the fact that student infraction and misbehavior rates vary dramatically by racial group, according to a 2014 study in the Journal of Criminal Justice by John Paul Wright, et al., making any demand for proportional representation in suspensions nonsensical. That study, entitled “Prior Problem Behavior Accounts for the Racial Gap in School Suspensions,” concluded that higher school suspension rates among certain ethnic groups are “completely accounted for” by misbehavior among students in such groups, and not the result of prejudice on the part of teachers or school officials.