During her four years at the helm of the Office for Civil Rights, Obama appointee Catherine Lhamon gave no sign that she was aware of the wave of due process lawsuits filed by students accused of sexual assault. So it was more than a bit jarring to see Lhamon tweet that “yet another fed court—5th Cir[cuit]—ruled that students disciplined for sex misconduct were not denied due process.”
The “yet another” formulation was particularly odd, given that more than 50 federal or state courts, in preliminary or final rulings, have held in favor of students accused of sexual assault. Was Lhamon implying she was unaware of these decisions? And, if so, what does that say about the bubble in which she operated at OCR? Perhaps she would have been better-served to have taken the meeting—which she initially refused—with FIRE.
More generally, the 5th Circuit opinion did little to advance Lhamon’s cause of eroding due process protections for accused students. The suit, filed by two students at the University of Houston, departed from the norm; of the 170 or so due process lawsuits filed since the Dear Colleague letter was issued in 2011, these two plaintiffs (then dating, now married) seem to have the least claim to a wrongful finding on the facts.
That background—that the accused students probably were guilty—proved critical to the case. Writing for the majority, Judge Stephen Higginson (an Obama nominee) deferred to Houston’s judgment. But he did so in a way that all but cabined his holding to cases where the accused student couldn’t make a plausible claim of innocence. “The unique facts of this case,” he maintained, “render it unnecessary that we draw any determinative line regarding sufficient procedures in state university disciplinary cases.” A bit later, citing the important Columbia case from the 2nd Circuit, Higginson detected a “stark contrast” between the Houston case, and others, featuring “allegations of student innocence.”
The 5th Circuit decision was also the first Appeals Court due process decision to produce a dissent. The Columbia case was decided 3-0 for the accused student; the deeply troubling Cincinnati case—where the judges did actually embrace Lhamon’s anti-due process agenda—was 3-0 for the school.
The dissent came from Judge Edith Jones, who described the Houston case as “the canary in the coal mine” about the loss of rights for accused students. Dismissing her colleagues’ basic argument (that because the accused students “were guilty, they got enough due process”), she faulted the panel for not examining the “background” to the Houston case—the efforts of the Obama administration’s OCR. Jones noted how the Dear Colleague letter, adopted without going through the notice-and-comment process, featured an “extremely broad definition” of sexual harassment and urged procedures that were “heavily weighted in favor of finding guilt.” Given that Houston “largely tracked” OCR’s mandates, rather than developed its procedures out of academic deliberations, Jones correctly noted that the university’s actions deserved no deference because of its character as an academic institution.
It was little surprise, then, that the Houston procedure was structurally unfair. Jones recommended that colleges and universities distinguish between the investigation and adjudication process, raise the standard of proof to clear and convincing evidence, and allow full legal representation for accused students. None of these changes, Jones observed, would “significantly impede the disciplinary process.”
Jones’ conclusion: “The University wants to have it both ways, degrading the integrity of its factfinding procedures, while congratulating itself for vigorously attacking campus sexual misconduct. Overprosecution is nothing to boast about.” Given that the majority framed its holding so narrowly, it had no real response to this point.
Degrading integrity of procedures and overprosecution were hallmarks of Lhamon’s tenure at OCR. Perhaps next time she tweets a due process decision, she’ll read the entire decision, and dissent, rather than just a summary.