News and Commentary

Former Obama Education Secretary Rewrites History On Campus Due Process

After years of reporters exposing the lack of fairness, due process, and sanity in campus sexual assault adjudications (not those reporters in the left-leaning media, of course, except for Emily Yoffe), the federal government is finally taking action to try and fix the issue. Naturally, this has caused those responsible for creating the mess in the first place to attempt to rewrite history and paint themselves as champions of something they most certainly weren’t.

Just before the Labor Day weekend, former Obama Education Secretary Arne Duncan sent a series of tweets claiming that under his leadership, the agency’s Office for Civil Rights (OCR) was actually fair to students accused of sexual assault. He was responding to an editorial comment from NBC’s Megyn Kelly, who had claimed the Obama administration “completely eroded the due process rights of the accused.” Duncan accused her of lying.

His evidence in that tweet is a ruling from OCR saying Wesley College did not provide an accused student a fair hearing. This ruling came out on October 12, 2016 and is the only time OCR ruled on a Title IX complaint filed by an accused student while Barack Obama was president. This ruling came as his administration was on the way out. It was also five years after OCR implemented its policies that forced schools to abandon due process rights in the first place. That they ruled against a single school specifically for such a claim is hardly evidence that they didn’t create the conditions for which the complaint arose in the first place.

Duncan continued to say Kelly lied by claiming his agency “investigated Universities who violated Title IX by NOT protecting those rights, and held them accountable.”

His evidence here was a decision from OCR published July 7, 2016, again, five years after the new policies were implemented. This complaint was brought by an accuser claiming her report of sexual assault was not taken seriously. Buried in the report is a mention that the university “did not provide an equitable process to [the accused students.]” The school didn’t interview one of these students at a time that worked for him and didn’t interview either after their accuser filed more complaints of harassment, yet they were expelled.

Finally, Duncan provided a third OCR ruling, dated September 21, 2015 — four years after OCR’s guidance documents were created.

It states on page 2 that part of the University of Virginia’s policies were not equitable to either accusers or the accused. The report later expands on this by saying the school did not have enough information in informal complaints to know if the sanction was appropriate.

None of this supports Duncan’s final tweet, where he claimed: “We didn’t just fight to protect their due process, we investigated colleges, & held them accountable for Title IX violations, when they failed to protect the rights of the accused.”

Three OCR rulings — only one of which was initiated by the complaint of an accused student — is not evidence that they “investigated colleges and held them accountable for Title IX violations.” More than a hundred lawsuits were filed during the Obama administration by students accused of sexual assault who did not receive due process. Students and families I talked to in 2015 and 2016 told me they filed complaints with OCR but were rejected. Accused students had to file lawsuits because of how hostile OCR was toward them.

The Obama administration’s policies reflected this. It discouraged cross-examination — a key element of due process — claiming this could “re-traumatize victims.” Vice President Joe Biden constantly discussed the issue without mentioning due process, and Democratic senators began claiming we must “believe the victims” — which meant believing every accusation.

Catherine Lhamon, who was the head of OCR for the final years of the Obama administration, told schools in 2014 that the loss of federal funds for not investigating sexual assault complaints was not “an empty threat” and boasted that she had already threatened schools for non-compliance. Schools got the message: Find students accused by any means necessary.

Feminist and former judge Nancy Gertner wrote about the department’s policies years ago and said at a panel that schools provide resources to accusers but provide almost nothing to the accused.

“If you find for the man, you’re bound to be criticized, if you find for the woman you are not,” Gertner said.

Author and professor K.C. Johnson pointed out much more evidence that Megyn Kelly was telling the truth about Duncan’s department eroding due process rights, including lowering the standard of proof to find someone responsible, allowing double jeopardy, and training adjudicators to believe all accusers.

As Johnson pointed out, Duncan didn’t reference his agency’s actual policies — he couldn’t, because they contradicted his claims. His department’s policies, along with the rhetoric of the Obama administration and the media that supported it, all worked to erode due process for accused students.