The extreme Left’s war on due process of law is once more on display, this time in hearings before the Senate Health, Education, Labor, and Pension Committee on President Biden’s appointment of Catherine Lhamon to head the Office of Civil Rights of the U.S. Department of Education. The Left’s antipathy for due process as merely an impediment to the accomplishment of what it regards as its far worthier ends is long known. The New York Times hired, for its editorial pages, Sarah Jeong, who explicitly opposed due process as nothing but a tool of the patriarchal status quo.
But, long before that, extremist feminists attacked due process in domestic violence and sexual assault cases and with considerable success. For decades now, a bare allegation of domestic violence (or just one of fear) has been sufficient to deprive the accused of access to his house, his children, his bank accounts and personal belongings, at least until a hearing on the merits is held, i.e., potentially for months. And what is “#BelieveWomen” if not the bald-faced notion that, if a woman cries “Rape!” serious legal and other consequences must follow for her accused. That has succeeded in removing elected officials from office and countless professors, journalists, lawyers, etc. from their jobs and all without charges, trial, neutral tribunals or the presumption of innocence. The circus surrounding the Brett Kavanaugh nomination demonstrated, among many other things, that the Left now believes, as an entitlement, that Accusation = Guilt.
Lhamon is part of that history. She served as assistant secretary of the DOE under President Obama and is partly responsible for the infamous “Dear Colleague” letter that, at a single stroke, demolished the due process rights of every college student accused of sexual impropriety. Every single college and university that receives federal funds was subject to the terms of that letter and every single one interpreted it as requiring, as a condition of future funding, the drastic curtailment of the rights of accused students.
The stories of what followed are literally Kafkaesque. Accused students, almost all of whom were men, faced expulsion from school or lesser penalties, all of which severely impaired their ability to get a college education. But the processes established by those schools, in compliance with the letter, routinely deprived the accused of basic information about the accusations against them, the right to an attorney, the right to cross examine their accuser, the right to examine inculpatory evidence, the right to produce exculpatory evidence and the right to an impartial tribunal.
In short, the letter produced kangaroo courts whose purpose was to find guilt and punish.
Unsurprisingly, those campus processes have been the subject, over the years, of hundreds of federal lawsuits filed by accused students. Many of those are still in process, but hundreds of them have been decided in favor of the accused and against their colleges. Countless federal judges have used the strongest language in condemning them and colleges have wasted vast sums of money in vain attempts to defend the indefensible. A return to the “Dear Colleague” days would require them to continue doing so.
Now, you might think that such obviously flawed processes would be jettisoned by colleges and universities at the first opportunity. That opportunity came in the form of President Trump’s Secretary of Education, Betsy DeVos, who did what the Obama Administration should have done, but didn’t; she followed the Administrative Procedure Act. That meant she issued proposed rules for the handling of sexual assault claims, submitted those rules to the statutorily-mandated period for public comment and then amended them accordingly before they became final. More importantly, those rules returned due process of law to the procedures colleges must follow in deciding allegations of sexual wrongdoing.
But now the Biden Administration wants to return to the bad old days in which college men (mostly) are targeted for punishment with little ability to defend themselves. Catherine Lhamon, in her testimony before the Senate committee refused even to pay lip service to the concept of the presumption of innocence.
Last week, when asked at her confirmation hearing before the Senate Health, Education, Labor, and Pension Committee if she believed in the presumption of innocence, Lhamon could only muster that campus investigators looking at an accused student should be “open to the possibility that the person is not [guilty].”
Yes, and Torquemada was similarly open to that “possibility,” but I doubt the august Ms. Lhamon would want to be tried by him. No, the only people she considers worthy of such blatant disregard of the most basic rights are college men.
Let’s be clear. Due process of law isn’t simply some “technicality” dreamed up by lawyers to complicate matters. The concept of due process, including the presumption of innocence, is ancient, dating back at least to the Code of Hammurabi, almost 4,000 years ago. Importantly, it’s been embraced over the centuries, not just by those wanting to limit state power, but by enlightened state power itself. Indeed, when, in the third century C.E., one of his judges demanded of the Byzantine emperor Julian, “Can anyone, most mighty Caesar, ever be found guilty if it be enough to deny the charge?” the emperor replied, “Can anyone be proved innocent if it be enough to have accused him?”
Why would an autocrat like Julian voluntarily permit due process to limit his own power? He would do so in order to add legitimacy to his rule. The sovereign who allows all to see that he rules, not by fiat, but by an impartial legal process that treats all alike and who intentionally limits his power to convict and punish is the sovereign who has a legitimacy in the eyes of those he governs that another doesn’t. By voluntarily restricting his own power, he makes it more secure, less inclined to overthrow.
Given that, we can see that those, like Lhamon, who would erode due process not only seek expanded governmental power at the expense of individual rights, which alone would be enough to condemn their actions. They also seek to damage the all-important compact that exists between government and the governed. They seek to both increase the power of government and erode popular support for that government. The extremist Left makes no secret of its goal to destroy this country’s core institutions, and this is more of the same.
The Lhamon nomination is an important test for Congress. Members must stand up powerfully and unequivocally for due process of law and vote down her nomination. As Betsy DeVos says,
A presidential appointee must take an oath “to support and defend the Constitution of the United States” in order to be sworn into office. Catherine Lhamon, President Joe Biden’s nominee to head the U.S. Department of Education’s Office for Civil Rights, could not take that oath in good faith.