Due Process Eroded by Bills like CASA That Let Agencies Keep Fines They Impose

By Hans Bader - Competitive Enterprise Institute

Due process is being eroded by recent bills that would authorize agencies to impose massive fines on regulated industries, and then keep those fines for themselves, giving them an incentive to find regulated entities guilty based on weak or equivocal evidence. To protect due process, such fines should be payable to the U.S. Treasury, not the prosecuting agency.

I write about one such bill at The Examiner:

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). That provision needs to be removed, because it will give OCR an incentive to find innocent colleges guilty of violations in order to keep the resulting fines, violating colleges’ due process rights. It will also 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. InWard 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 acollege’s budget for “each violation or failure” — that would be a whopping $42 million for Harvard alone, since its budget is $4.2 billion.

More at this link.

An agency should not keep such fines for itself. Moreover, an agency should ideally have its prosecutorial and adjudicatory functions split up between an investigative arm (housed in a cabinet department) and a separate, independent quasi-judicial body (for example, a multi-member commission operated as an independent agency) whose budget is unaffected by whether it finds the accused guilty or innocent. 

As I note at The Examiner, there is nothing extraordinary about what is happening on campus that warrants an exception to due-process safeguards for colleges. Worse, letting OCR fine colleges millions of dollars will encourage them to curry favor with the OCR by doing things like adopting speech codes, and 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. Under procedures it adopted to settle an OCR investigation, Yale recently imposed limited sanctions against a student it had found not guilty of sexual assault and harassment. (Yale also punished a fraternity for vile speech to appease OCR).

During the current administration, OCR has sought to restrict students’ free speechand due process rights on college campuses and in the public schools. It also haspressured school districts into adopting veiled racial quotas for school suspensions.

Under pressure from OCR, some colleges are now expelling or suspending 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 big monetary 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.

In short, even if there should be an administrative exception to due process safeguards for social emergencies, it would not apply in this context. Administrative law itself already stretches the Constitution’s limits with respect to due process and the separation of powers. 

For an argument that federal agencies already routinely transgress the constitutional separation of powers and other constitutional safeguards, see Columbia University law professor Philip Hamburger’s recent book, Is Administrative Law Unlawful?, and his fascinating commentaries at the Washington Post’s Volokh law blog, see here, here,here, and here.

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