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Disturbing provision harms due process in Campus Accountability and Safety Act

It is a conflict of interest -- and sometimes a violation of due process -- for a fine to go to the very unit of government that employs the judge or official who imposed the fine. That gives the official an incentive to find the accused guilty in order to enrich the official's agency. But such fines are apparently authorized by a provision of the Campus Accountability and Safety Act (CASA) (also known as S. 2692 and H.R. 5354).

CASA imposes penalties on colleges for violating regulations related to "sexual violence." But a provision in the bill lets the money be kept by the agency imposing the fine, the Education Department's Office for Civil Rights (OCR). Indeed, such fines will effectively enrich the very branch of OCR that enforces and administers CASA, since the end of section 2 of CASA states that OCR "may use any such civil penalty funds to enforce and administer" CASA "provisions.''

That provision needs to be removed, because it will give OCR (and its staff) an incentive to find innocent colleges guilty of violations in order to keep the resulting fines, violating colleges' due process rights. It will also indirectly strengthen OCR's ability to pressure colleges and schools to adopt politically-correct policies unrelated to sexual violence.

This kind of conflict of interest can violate the Constitution's due process clause when the resulting fines comprise a large fraction of the agency's budget. In Ward v. Monroeville (1972) the Supreme Court ruled that because a "major part" of the Village of Monroeville's finances came from fines imposed by mayor's court, the defendant was denied due process, the right to a disinterested and impartial judge. Here, OCR can levy fines that equal one percent of a a college's budget for "each violation or failure" -- that would be a whopping $42 million for Harvard alone, since its budget is $4.2 billion.

Whether or not it violates the Constitution, this provision is a bad idea that will backfire. OCR is one of the most ardently left-wing federal agencies, as I can attest from having worked there. Moderates and conservatives in Congress should not enable left-wing empire building by OCR.

There is something very unseemly about an agency getting rich off fines that it keeps, giving it an incentive to multiply its budget by finding colleges guilty, even if they are innocent. Courts have sometimes allowed agencies to rule on matters that financially affect the agency -- like the FDIC increasing banks' assessments for risk -- when no individual official derives a financial benefit, and the effect on the agency's budget is not major. See Doolin Sec. Sav. Bank v. FDIC (4th Cir. 1995). But this provision in the CASA bill seems like a potentially more more extreme example. See also Tumey v. Ohio, 273 U.S. 510 (1927) (reversing convictions imposed by mayor in mayor's court when mayor's fees and costs directly depended on fines imposed from convictions and when village financially benefited from fines).

Oddly, this bill has bipartisan support (although its chief architect is Democratic Senator Claire McCaskill). It’s odd to see House Republicans pushing it when they have objected to self-financing agencies like the Consumer Financial Protection Bureau (CFPB). Why let an even more ideological entity like OCR self-finance by levying -- and then keeping for itself -- fines on regulated entities?

As the Foundation for Individual Rights in Education notes:

Under this provision, if ED concludes that violations occurred, it can impose fines equal to 1 percent of the institution’s operating budget for each violation. At institutions that receive limited federal funding, these fines could actually exceed the the amount of federal funding the institution receives. Compounding this problem, under CASA, money collected from the fines would go directly to ED’s Office for Civil Rights, which provides a perverse incentive for the agency to find violations.

Giving the Office for Civil Rights the ability to fine colleges millions of dollars will encourage them to curry favor with the OCR by doing things like restricting politically incorrect speech on campus. It will also give OCR expanded leverage to pressure colleges to curtail due process for students accused of various offenses, the way it recently required Tufts University to reduce due process protections for its students in exchange for an end to a federal investigation (Tufts was required to authorize "interim measures" against students even before deciding their guilt or innocence.).

During the Obama administration, the Education and Justice Departments have sought to restrict students’ free speech and due process rights on college campuses and in the public schools. They also have pressured school districts into adopting veiled racial quotas for school suspensions.

Under pressure from the Education Department's Office for Civil Rights, some colleges are now expelling students who are very likely innocent of sexual harassment or assault, see examples here, here, here, here, here, here, here, here, here, here, and here.

Colleges already had large financial incentives to expel students who might be guilty of sexual harassment or assault, even without recent pressure from the Office for Civil Rights. This year, the University of Connecticut settled a Title IX sexual harassment lawsuit against it by paying $900,000 to a former student who alleged sexual assault. In 2009, the University of Arizona paid $850,000 to a sexual assault plaintiff. In 2007, the University of Colorado paid a sexual assault plaintiff $2.5 million.

The principal author of the bill, Senator Claire McCaskill (D-MO), has erroneously suggested that victims of sexual assault on campus have little recourse under existing law, citing the fact that no college has ever had its federal funds cut off by OCR due to sexual assault. (She disparages the possibility that such a cut-off could ever occur by saying a cut-off would be “like me telling my kids I’m never going to speak to them again” if they don’t shape up. But colleges and school districts investigated by OCR are frightened enough by the prospect of such a financial death sentence that they jump through hoops to appease OCR, including paying off complainants and making far-reaching changes to longstanding policies to resolve complaints against them).

But this is very misleading. For an explanation for how there are already strong legal remedies for sexual harassment and assault on campus, and how liability risks are already weighted in favor of expelling accused students, see this discussion by a lawyer quoted at Andrew Sullivan’s Daily Dish:

Not only have people successfully sued for a million dollars or more under Title IX and its sister statute, Title VI (which deals with racial harassment), as in the Zeno case, but the Education Department’s Office for Civil Rights does in fact effectively impose sanctions on schools even when it doesn’t cut off their federal funds, since it sometimes conditions the end of the investigation on a resolution agreement that contains monetary compensation for victims.

For example, Tufts recently agreed to provide “monetary compensation for a complainant, despite denying any wrongdoing, although it balked at an Education Department demand that it also declare itself in violation of Title IX: “Tufts signed an agreement with the government earlier this month, pledging to take a long list of steps in improving their policies, as well as providing monetary compensation to the student.”

Moreover, many seemingly-innocent students have been expelled or suspended based on meager evidence, as is evidenced by the cases cited on the web site of the Foundation for Individual Rights in Education, and in former Massachusetts ACLU leader Harvey Silverglate’s Wall Street Journal op-ed in discussing the Caleb Warner case. . . .

Unfortunately, the deck is usually stacked against the accused student. School officials have every incentive to expel students if there is any chance they are guilty at all. A state university official who doesn’t kick out the accused can be individually sued under decisions like Murrell v. School District No. 1 and Fitzgerald v. Barnstable School Committee. That’s in addition to the fact that the university itself can be sued under Title IX. School officials can also be sued under state sexual harassment laws that reach further than Title IX, like New Jersey’s Law Against Discrimination, which provides for individual liability on the part of school officials, as well as liability based on constructive rather than actual notice.

By contrast, a school that expels an innocent accused probably can’t be sued, even if he is probably innocent, since the accused only has a right to PROCEDURAL due process, not any SUBSTANTIVE finding of guilt or innocence. So as long as the school goes through the motions of giving the accused a fair hearing, and follows its procedures, it can kick him out even if he is probably not guilty.

Moreover, a college that does not take allegations of sexual harassment or assault seriously can get into trouble with its accrediting body.