Wednesday, July 22, 2015

"In Loco Parentis" -- or Just "Loco"

So, a little more on a case that resonates with the earlier piece on the Sixth Amendment, particularly the part about one's right to counsel in "a criminal" case.  And let me note, before we even get started, that the text of the Sixth Amendment refers to "in all criminal prosecutions ..." 

It does not confine its dictates which, by the way, are the law of this land, to government entities.  So whatever you think "criminal" means, if it is arguable, it applies as far as this piece.

Many readers of this site are not in the Washington, DC area, or even in the USA, and so you may be unaware that the nation's capital is, and has been for many years, run by people who combine corruption (Marion Barry, Vincent Gray) with incompetence (both of the two aforementioned, along with Sharon Kelly), with a far-left political bent and strong undertones of racist policy.

By "run by", I include the City Council, especially when we stress the incompetence, corruption and far-leftism.

Of course you'd like some evidence, so here we go.  The poor folks who were stupid enough to elect that Council and those mayors -- and I do not live there -- were subjected recently to a proposal from a Council member, Anita Bonds, that would cover accusations of sexual assault on campuses.

Now, whether or not sexual assault is indeed a problem on campus -- and one may assume that it is -- does not change the wording or the implication of the Sixth Amendment's guaranteed protections for those accused in a criminal prosecution, rights to counsel, to due process and to an impartial jury.

That doesn't seem to bother this Anita Bonds who, it needs to be mentioned, is also the head of the Democratic Party in the District of Columbia.  As explained here, she has proposed a law for the District that would put a "permanent and prominent notation" on the academic transcripts of students convicted of sexual assault, or who leave school while an investigation is pending.  The italics are mine, and are relevant.

Nowhere -- not once -- is there a hint of reference to actual governmental judicial due process.  Nowhere is there a mention of what the obligation of the university is in terms of compliance with due process.  This law, were it ever to be passed and survive until the first Federal court that heard a case on it would likely laugh it into oblivion, would affect not only private schools -- such as Georgetown, George Washington and American University, but also the University of the District of Columbia -- which is a government entity.

Deep breath ...

Do you, especially those of you who spent four or more years in university campuses, have a shred of trust that your institution would even value an actual Constitutional mandate higher than political correctness?  I quote from a letter to the Post editor from a lawyer named David Benowitz:

"None of the several universities in the District where I have represented students allows accused students to have a lawyer speak with them. None allows lawyers to cross-examine witnesses.  At American University, [although I represented a student] I was forced to sit outside the hearing room, while my client, accused of sexual assault, faced off against a university lawyer. The hearings are presided over by fellow students, amateurs lacking the training or experience to rule on complex matters of evidence and procedure."

No wonder that other states are exploring the converse law, i.e., guaranteeing counsel to the accused in these cases.  But let me answer my own question back a paragraph on trusting colleges to value the Sixth Amendment more than being PC:

No!  Not only "no", but heck, no.

I graduated from the Massachusetts Institute of Technology and, while I trust the school to do a lot of things well, it is still a rather liberal-run place, and I have never heard a peep in the 46 years I have had any association with MIT that suggests that the U.S. Constitution is held in higher regard than any other legal rationale.

Maybe I do have confidence that MIT, were it to play in this foolishness if Massachusetts passed something like this, would at least tip its hat to the Constitution and listen to those who reminded them to.  But Georgetown?  Beats me.  UDC?  I really don't think so.

Look at the law as proposed.  Forget the specific punishment; look at process.  Any punishment that goes outside the school, as this one would, demands due process.  "Due process" does not mean trials presided over by students.  It does not keep lawyers away from the defendant during trial.  Those proceedings flunk the constitutional test on all counts.

If the proceedings that would produce the outcome in this law are not done in accordance with the Sixth Amendment, they're invalid, certainly for producing any punishment that would translate outside the walls of the university.

And that, friends, means that the universities -- all of them -- take on the role not only of deputies in law enforcement, but also the role of the courts.  And don't think they're not -- the Sixth Amendment doesn't anywhere confine itself to just government "trials."  Once you oblige universities to put, by law, the outcome of what could be kangaroo courts into a permanent punishment form for its "convicted" defendants, they absolutely fall under that mandate.

I wrote several times about the disgrace that was the set of actions of the president of the University of Virginia (here and here) in regard to phony accusations of rape that shut down the fraternity and sorority system there for a while.  Let's just take that a bit further.  Suppose that the fake story in Rolling Stone had led to a trial of a member of Phi Kappa Psi -- or several -- in one of those "student courts" that pass for justice on campus, and it had happened in DC.

Suppose that one of those students had seen the deck stacked and left school, presumably to find a different university with higher judicial standards, whose president could actually spell "Constitution."  Under this law, he would have his academic record marked with a permanent indication that he had left school after an accusation of sexual assault.

That's "permanent", as in "forever."  No trial, merely a notation, and one that would not reflect the fact that, rather than face a court of grossly-undereducated students, he left school.  There would be no form of appeal.  And, most importantly, there is no provision in the proposed law to remove the punishment if the defendant were to be exonerated in an actual, you know, court of law where the rules of evidence and due process do apply.

You give a liberal an inch, and they'll take a mile -- and then reach into your pocket for good measure.  Give a liberal something that would actually help.

Give them a copy of the Constitution, at least if they learned to read in college.

Copyright 2015 by Robert Sutton
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