California Governor Jerry Brown Joins Forces With Education Secretary Betsy DeVos
Steven Wells
I was thinking of an alternate title: "Washington State Senator Comes Out Against Due Process and Supports Gender Bias." But more on that later.
On Sunday, October 15th, Governor Brown vetoed a bill that had been passed by the California Legislature in reaction to Education Secretary DeVos' recent announcement of a rule making process to replace guidance issued by the Obama Administration in its notorious 2011 “Dear Colleague” letter. The intent of the California bill was to explicitly “protect the Obama-era guidelines,” according to the bill’s sponsor. Adherence would be “a condition of receiving [state] financial assistance."
I'd like to believe the governor was acting on deeply held beliefs about the importance of due process in legal proceedings, including a presumption of innocence and safeguards against gender bias. However, I think he may have more on his mind. There are currently nice cases before the state superior court against the University of Southern California brought by males who have contested the fairness of their sanctions.
Some legal experts, including the federal and state judges deciding the cases, say the flurry of recent successes for disciplined students may show how some colleges and universities are eliminating basic procedural protections in an attempt to combat campus sexual assault.
“In over 20 years of reviewing higher education law cases, I’ve never seen such a string of legal setbacks for universities, both public and private, in student conduct cases,” Gary Pavela, editor of the the Association of Student Conduct Administration's Law and Policy's Report and former president of the International Center for Academic Integrity, said. “Something is going seriously wrong. These precedents are unprecedented.”
In a January 12, 2015 issue of The American Prospect magazine, former federal judge and current Harvard Law School professor Nancy Gertner (recipient of the "2014 Margaret Brent Women Lawyers of Achievement Award of the American Bar Association") said, "As the letter of the 28 [Harvard law professors] (supra) noted, this [investigator] procedure does not remotely resemble any fair decision-making process with which any of us were familiar: All of the functions of the sexual assault disciplinary proceeding—investigation, prosecution, fact-finding, and appellate review—are in one office, we wrote, and that office is a Title IX compliance office, hardly an impartial entity. This is, after all, the office whose job it is to see to it that Harvard’s funding is not jeopardized on account of Title IX violations, an office which has every incentive to see the complaint entirely through the eyes of the complainant.
Even Governor Brown wrote at the time of his veto, “Thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault—well [intended] as they are—have also unintentionally resulted in some colleges’ failure to uphold due process for accused students.”
My alternate blog title above was a tongue-in-cheek attempt at an attention grabbing headline, similar to those that serve to inflame more than to inform, and was a reaction to a recent letter issued by democratic senators to Secretary DeVos. In the letter, the senators expressed disappointment at her decision to rescind guidance and stated that "Your action on Friday shows a clear lack of concern for the many requests of survivors of sexual assault and members of Congress who have asked you to leave the previous guidance in place. Your new guidance is already creating uncertainty and chaos for schools and we ask that you immediately reinstate the previous guidance."
Hopefully, by following a rule making process, DeVos can get this right.