July 18, 2014


Illegals Crossing Border Have More Rights Than College Students Accused of Rape

WASHINGTON, D.C.: Tens of thousands of illegal immigrants, both children and adults, now streaming across the border, have more procedural protections – like the right to an impartial hearing, to require the production of documents, to present evidence, to cross examine those testifying against them, and to have their own lawyer present – even though it appears that most will never be deported, and those who are deported will simply be returned to their homes, whereas the much smaller number of college students who face expulsion and all of its life-altering consequences for alleged date rape have no such rights.

The disparity in procedural protections is likely to shortly become even worse, with a just-filled law suit seeking to require that each of the 60,000-plus unaccompanied children who have come across the border since November get taxpayer-funded representation at deportation hearings.

President Obama has just requested $15 million for attorneys to represent unaccompanied minors in deportation removal proceedings, and an additional $1.1 million for “immigration litigation attorneys” who, presumably, would assist adult illegal immigrants in their proceedings.

“The president is asking U.S. taxpayers to spend millions to help illegal immigrants who knowingly broke our laws to avoid deportation,” says Jessica Vaughn, director of policy studies at the Center for Immigration Studies; a decision which may have dire consequences for our entire immigration policy.

Indeed, if these and other budget requests are not approved, other border functions will have to be cut, said Homeland Security Secretary Jeh Johnson. “At the current burn rate, ICE is going to run out of money at mid-August and we project CBP will run out of money in mid-September,” Johnson said.

In sharp and dramatic contrast – even though the issues in typical “he said, she said” date rape proceedings tend to be far more complicated to resolve, and often require skilled cross examination to get to the truth – students accused of date rape and other sexual assaults are often not permitted to even have their own attorneys present, much less to conduct cross examination, something which would cost colleges nothing.

Indeed, even cross examination to test the veracity of what is often the only direct evidence of wrongdoing – the testimony of the complainants, some 60% of whom are so intoxicated that they have no clear memory of the event, and some 33% who had mental health issues prior to the alleged assault – often is not permitted in college adjudicatory proceedings.

This is especially upsetting when the U.S. Supreme Court has ruled that the Constitution requires Due Process procedural protections – including cross examination and the right to counsel – before other arguably less serious consequences such as the loss of disability benefits, cuts in welfare benefits, wrongful terminations, etc.

So far, more than a dozen students have successfully sued their universities for improperly finding them guilty of date rape, and more than a dozen more cases are pending, says public interest law professor John Banzhaf, who first spotted the trend.

Because so many of these law suits involve allegations of violations of Due Process, judges may soon begin determining exactly what procedures are required by the Constitution, taking these controversial issues out of the hands of both legislators and college administrators, he predicts.

“The Supreme Court has determined that judges – not legislators or regulators – have the final say in determining under the Constitution which procedural protections a person is entitled to, and has set forth a formula which requires that judges consider both the seriousness of the loss to the accused and the importance of the procedural protection for preventing that loss,” says Banzhaf.

Like I keep saying, there’s a lot of low-hanging legal fruit in the higher-education sector.

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