Wednesday, February 13, 2019

"Due Process” Dog Whistles (Professor Nancy Chi Cantalupo)


Secretary Betsy DeVos and the Trump administration’s Department of Education (ED) have turned “due process” into a dog whistle. While these officials are loudly spinning their recent Notice of Proposed Rulemaking (NPRM) on Title IX as increasing students’ “due process” rights, they are quietly dismantling real due process for students of color, especially Black students, having rescinded the Obama-era guidance that sought to reduce discriminatory discipline in school late on the Friday before the Christmas holiday, with a government shutdown pending.

As I detail in my forthcoming piece in Wake Forest Law Review’s symposium issue on “The Trump Administration and the War on Diversity,” this dog whistle is correctly understood by DeVos’s allies among “Men’s Rights” and other groups with similar agendas as a way to silence sexual harassment and assault victims but looks to those outside her inside circle as a laudable effort to increase fair treatment. This ploy counts on most of the general public failing to notice that ED has long signaled plans to eliminate these due process protections, despite wide acknowledgement of discriminatory discipline’s involvement in the harmful “school to prison pipeline.”  Thus, only those in the administration’s inner circle understand what ED is really promising: that ED will give special rights to named sexual harassers and assailants, as their Notice of Proposed Rulemaking on Title IX (NPRM) in fact does.

We can see ED’s dog-whistling in DeVos’s statements about Title IX, where she has repeatedly used “due process” to suggest that Title IX treats students unfairly, a bizarre claim about a civil rights law. In a speech announcing her intention to issue this NPRM, she discussed “due process” ten times, but never once mentioned “equality,” and the only “discrimination” she denounced was so-called reverse discrimination against accused harassers (a claim repeatedly rejected by courts). Likewise, in a recent op-ed, her only reference to equality was in praising herself for restoring “equal” appeal rights in the NPRM—while failing to mention that DeVos herself rescinded this right in her 2017 Title IX guidance and that her current NPRM actually allows only those found responsible for harassment—but not the person they abused—the right to appeal the disciplinary sanctions, which is simply not “equal”.

ED’s due process dog whistle tries to obscure the ugly truth that this NPRM actually demolishes the fair process Title IX has historically guaranteed, by inappropriately criminalizing a civil rights statute. No clearer showing of such criminalization can be found than DeVos’s recent claims, like a host of similar ones regarding Brett Kavanaugh, that students accused of sexual harassment should be given a “presumption of innocence,” a synonym for a criminal standard of proof.  Just as the presumption of innocence is the wrong standard for a job interview or conduct at work, it is also the wrong standard for conduct in school, especially when schools cannot imprison wrongdoers as criminal courts can. 

Research shows that dog whistle politics has been used quite effectively to divide Americans along racial lines, but there is hope that it will not work this time. Research shows that the American public very clearly expressed to ED its overwhelming support for Title IX and the balance ED had struck between the rights of victims and reported harassers in previous administrations, regardless of the party in power. This support was expressed before #MeToo and reactions to the multiple allegations leveled against Brett Kavanaugh exposed the depth and breadth of our nation’s sexual abuse problems, including for men and boys, who are far more likely to be victims of sexual assault than to be falsely accused of it. Midway through the NPRM’s comment period, a flood similar to #MeToo was already occurring.

Before the NPRM’s 60-day comment period ends on January 30, 2019, every member of the public—those whose research is connected to inequality, civil and human rights, especially—who care about safety and equality in our schools should file a comment refusing to allow “due process” dog whistles to divide us.

-- Professor Nancy Chi Cantalupo, Barry University School of Law

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