Posted tagged ‘Jonathan Turley’

Restoring Due Process on Our Campuses

September 14, 2017

Restoring Due Process on Our Campuses, Jonathan Turley’s Blog, Jonathan Turley, September 14, 2017

(How about some due process rights re freedom of speech and religion on campus? — DM)

During the Obama administration, I was one of the academics who publicly criticized the “Dear Colleague” letter of Russlynn Ali, then assistant secretary for civil rights at the U.S. Department of Education under President Obama. Ali informed schools that they had to either strip their students and staff of due process protections or face the crippling loss of federal funding. Notably, Ali never submitted this massive policy change for “notice and comment” compliance under the Administrative Procedure Act.

The Obama administration demanded more cases and more expulsions from colleges. While saying that the curtailing of rights would make it easier for women to allege assaults, it was clearly making it easier to find guilt. For example, before the change, universities generally applied standards of proof requiring a “clear preponderance” or “clear and convincing evidence.” While not as demanding as “beyond a reasonable doubt,” the standard assured that a student would not be expelled for a sexual assault without a solid evidentiary record.

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Below is my column on the decision of Education Secretary Betsy DeVos to rescind the highly controversial “Dear Colleague letter” of the Obama Administration.  The letter, which made sweeping changes to educational policy, was never put through any notice and comment period under the Administrative Procedure Act (APA).   At the time, schools and faculty objected to the stripping of basic due process protections from our students.  However, politicians are now denouncing those who want to restore due process as soft on sexual abuse.

One of those denouncing DeVos is Texas lawyer and adjunct law professor Rob Ranco who said that he would be fine with DeVos being sexually assaulted.  Ranco has now resigned from his law firm, the Carson Law Firm, after apologizing for his public statement.  Ranco is reportedly an adjunct professor of paralegal studies at Austin Community College.

I have long criticized the erosion of due process rights on our campuses, particularly the unilateral action taken by the Obama Administration.

Here is the column:

The recent announcement by U.S. Education Secretary Betsy DeVos on handling sexual misconduct claims on college campuses led to a chorus of vitriolic and at times vicious attacks. Advocate Annie Clark denounced it as “a blatant attack on the civil rights of survivors.” The group Know Your IX declared that DeVos was against equality on campuses and was actively seeking to “help abusers and rapists.”

Texas lawyer Rob Ranco put it more bluntly. He proclaimed on social media that he would “be okay” if DeVos was sexually assaulted. From these comments, it would be easy to conclude that DeVos was bringing back coverture and chattel laws to our campuses. Instead, she was calling for comments on restoring minimal rules of due process for the investigation of sexual misconduct. Nevertheless, politicians and advocates have lined up to fight such “inequitable” and intolerable rules as protecting the right to counsel or allowing for a full opportunity to respond to evidence.

During the Obama administration, I was one of the academics who publicly criticized the “Dear Colleague” letter of Russlynn Ali, then assistant secretary for civil rights at the U.S. Department of Education under President Obama. Ali informed schools that they had to either strip their students and staff of due process protections or face the crippling loss of federal funding. Notably, Ali never submitted this massive policy change for “notice and comment” compliance under the Administrative Procedure Act.

The Obama administration demanded more cases and more expulsions from colleges. While saying that the curtailing of rights would make it easier for women to allege assaults, it was clearly making it easier to find guilt. For example, before the change, universities generally applied standards of proof requiring a “clear preponderance” or “clear and convincing evidence.” While not as demanding as “beyond a reasonable doubt,” the standard assured that a student would not be expelled for a sexual assault without a solid evidentiary record.

The Obama administration demanded the reduction of the standard to a mere “preponderance of the evidence,” or just slightly above a 50-50 determination. Since these disputes are often a “he said, she said” dispute, that means that a conviction can be based on the accuser’s account with even the slightest additional support.

The Obama administration also sought to deny the accuser the right to question the accuser. Ali insisted that this right “may be traumatic or intimidating (for the victim), thereby possibly escalating or perpetuating a hostile environment.” After all, many have argued that most allegations of abuse have been found credible, so why put the accuser through such a traumatic stage of a hearing? Notably, the Supreme Court stated in 2004 that “dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty.”

Courts have repeatedly ruled against universities and colleges for denying students due process in proceedings structured to guarantee conviction. Dozens of such cases have been filed and many shock the conscience in their open disregard for any semblance of a fair hearing. In some of these cases, not only was the accused denied an opportunity to question the accuser but also key witnesses.

In one of the most recent decisions, a court ruled against the Miami University in Ohio after finding glaring due process violations in the case of an anonymous student known as “John Nokes.” Part of the decision addresses an increasingly common practice under the new rules of treating any drinking as negating any defense of consent under university intoxication rules. While both students drank before their sexual encounter, and Nokes insisted that the women was not inebriated, Ethics Director Susan Vaughn, who headed the hearing, told Nokes that there is no threshold amount for a finding of intoxication, and thus, a lack of consent.

The court also found that Nokes was never given fair notice that he was charged with assaulting an incapacitated student. Likewise, three key witnesses never showed up for the hearing but Vaughn insisted that she must “take this as fact. That is all true.” The university insisted that Nokes did not need the witnesses to tell his story. U.S. District Judge Michael Barrett simply noted that the university officials “miss the point of cross examination” and that their “claim that no amount of cross-examination could have changed the minds of the hearing panel members arguably undercuts the fairness of the hearing Plaintiff received.”

Nevertheless, advocates like Amy Siskind of The New Agenda have demanded to know why DeVos was “taking away Title IX protections for college women.” In reality, these were not Title IV protections, but demands in a letter without any Administrative Procedure Act compliance. That was a view echoed by over two dozen Harvard professors who denounced “procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

For civil libertarians, the effort to paint those favoring due process as favoring criminals is all too familiar. Rather than being accused of being “soft on crime,” critics now charge that DeVos and others are “soft on sexual abuse” by wanting basic due process rules. In reality, we can have both due process and full protection for our students. We need to maintain safe environments as well as responsive procedures to encourage victims to come forward. However, the Obama administration sought to achieve the appearance of success through a pretense of process. It associated fundamental rights with unsafe environments. Stripping rights will not bring real safety any more than rigging outcomes will bring real justice for our students.

New York Times prints ‘annotated’ US Constitution

July 21, 2017

New York Times prints ‘annotated’ US Constitution, Fox News via YouTube, July 3, 2017

(According to the New York Times article, the U.S. Constitution is outdated and should be changed or often ignored. Jonathan Turley disagrees.– DM)

Turley: When You Separate Trump’s Rhetoric From What He Has Done, He Has Complied With the Law

July 3, 2017

Turley: When You Separate Trump’s Rhetoric From What He Has Done, He Has Complied With the Law, BreitbartJeff Poor, July 3, 2017

 

Monday on Fox News Channel’s “Fox & Friends,” George Washington University law professor downplayed the suggestion President Donald Trump has acted above the law as commander-in-chief.

According to Turley, despite what The New York Times had suggested over the weekend with its annotated version of the U.S. Constitution, Turley said Trump has actually complied with the law.

“There is a narrative that we are in a constitutional crisis,” Turley said. “I’ve been very critical of this president with regard to his tweets, which I think are unpresidential. And I don’t think are very helpful to his administration. But, when you separate the rhetoric from what the president has actually done, he actually has complied with the law. You know, when immigration orders went against him, he complied. He appealed. When the sanctuary cities cases, rulings went against him, he complied. So his history is actually staying within the navigational beacons of the constitution. So, you do have to separate in terms of what is actually happening to what has been said. That doesn’t excuse what’s been said. But, when you look at what The New York Times has suggested in its editorial, it, I believe, gets way ahead of its skis in terms of where we are in this country.”

Iranian Negotiators Brag How They Are Artfully Tricking Western Diplomats With A Good Cop/Bad Cop Tactic

November 25, 2014

Iranian Negotiators Brag How They Are Artfully Tricking Western Diplomats With A Good Cop/Bad Cop Tactic, Jonathan Turley’s Blog, Jonathan Turley, November 25, 2014

No doubt, Kerry and others never heard of this tactic even though every kid watching old cop shows is well-versed in it.

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Many cops, attorneys and others have used the classic good cop/bad cop tactic to try to force concessions or confessions. The key of course is not to admit that you are just doing good cop/bad cop. That seems to have escaped Iranian negotiators in the ongoing nuclear program talks who have been giving interviews bragging about how they are screaming at American and other diplomats in a good cop/bad cop ploy. Hmmmm. It is nothing like a man screaming like a lunatic to convince you that he and his country should have access to weapons-grade nuclear material.

Part of the tactic does not appear to be an act. This appears to be the signature style of Iran’s foreign minister and lead negotiator Javad Zarif. His shouting and screaming is so loud that security repeatedly came bursting into the room out of concern that there was a violent breakout. Western diplomats have been sitting back to allow Zarif to blow himself out in each of the tirades. In one incident, European Union Foreign Policy Chief Catherine Ashton assured worried security officers that it was just Zarif again and that everyone was used to it.

What really caught my eye however was that Zarif’s unprofessional outbursts were openly discussed in the Iranian press and that the Iranian team also has been discussing how they are tricking Western diplomats with the use of the good cop/bad cop tactic. No doubt, Kerry and others never heard of this tactic even though every kid watching old cop shows is well-versed in it.

Iranian diplomat Abbas Araghchi discussed how Zarif “shouted” at Kerry in a way that was likely “unprecedented” in the history of U.S. diplomacy. That appears to be a good thing and a source of pride. He then went on to brag that he and Zarif play the roles of “good cop, bad cop” to “baffle the Western diplomats” and keep them uneasy. Clever.

As if to show the triumph of Iranian diplomacy, Araghchi said that after Zarif yells at Kerry and other diplomats there is largely silence in the room except for “one or two very respectful sentences.” They appear to mistake shocked and embarrassed silence of diplomats with people are cowed by the brilliant screaming and pounding of Zarif. They will see the same reaction to people raving on the New York subway. Few people call the guy screaming about the microchip in his brain in the Penn Station “a master negotiator.” However, they may now wonder if he is an Iranian diplomat.