Colleges As Due-Process-Free Cash Cows For Government
Former Education Department lawyer Hans Bader, now a Senior Attorney at the Competitive Enterprise Institute, weighs in on a provision in a Senate bill apparently imposing large fines on colleges -- payable to the agency imposing them -- over sexual violence on campus.

This potentially violating colleges' due process rights (by incentivizing the agency in finding them guilty even if they are innocent) and indirectly encouraging them to colleges to violate students' due process rights.

An excerpt:

It is a conflict of interest -- and sometimes a violation of the Constitution -- 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 H.R. 5354 and S. 2692).

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 from the bill, 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. 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.

...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.

...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.).