Bipartisan Kentucky law complicates Biden review of Trump's campus due process protections

The Biden administration's scrutiny of its predecessor's regulations on due process in campus sexual misconduct proceedings may face complications from state attorneys general and recent developments in state law and litigation.

More than half of Republican AGs told Catherine Lhamon, director of the Education Department's Office for Civil Rights (OCR), they were "perplexed" why she's considering revising the "historic" 2020 Title IX regulations, which have survived multiple legal challenges, 

The 18-month rulemaking provided "strong, clear procedural rights" to both accusers and accused "in a predictable, transparent process designed to reach reliable outcomes," according to the April 5 letter led by Montana's Austin Knudsen and signed by 14 more AGs. 

They said Lhamon, who squeaked through confirmation last fall, must recuse herself from any rulemaking to revise those regulations, a direct response to the "constitutional and regulatory mess" she helped create in the same job in the Obama administration.

Lhamon used "guidance" documents and federal funding threats to pressure colleges to favor accusers. That led to changes in sexual misconduct proceedings that courts have steadily rolled back in recent years. 

"OCR didn't merely put its thumb on the scale of justice under your leadership, it became a biased institution," the AGs wrote. They noted that even in her confirmation hearing, Lhamon claimed the 2020 regulations allow students to "rape and sexually harass with impunity."

Knudsen spokesperson Kyler Nerrison told Just the News the department hasn't responded to the April 5 letter.

Late last month, Kentucky Gov. Andy Beshear (D) signed into law a sweeping campus due process bill sponsored by Republican Rep. Kim Banta and supported by Republican and Democratic college organizations.

HB 290 covers disciplinary proceedings that can result in suspension, expulsion or "termination" from campus housing, including for sexual misconduct. 

It requires public institutions to presume innocence, provide detailed charges and factual allegations within set timeframes, offer "reasonable continuing access" to all evidence that's not privileged, and separate the roles of investigator and adjudicator.

The law also grants accusers and accused students the right to active assistance by a lawyer or advisor, including cross-examination, "at each material phase of the disciplinary process" and at their own expense. They can sue in state court and obtain damages for violations of the law.

The Kentucky Student Rights Coalition, composed of 64 student organizations including pro-life, pro-choice and LGBTQ groups and the Kentucky College Democrats and Kentucky Federation for College Republicans, organized support for the bill.

Executive Director Michael Frazier, a former LGBTQ organizer, told Just the News that public universities fought the bill "behind closed doors" because they were "too afraid to make their position public."

Frazier shared his and others' testimony. "Some try to label these [disciplinary] hearings as educational," he told Beshear. "But I doubt that any student or their family pays their tuition dollars to learn the hard way that they can be railroaded out of their futures."

University of Louisville Young Democrats President Julia Mattingly said she was banned from legal counsel when she accused another student of "pervasive harassment and defamation." U of L College Republicans Chairman Liam Gallagher said the issue is a "government institution reigning supreme with little to no due process protections in state law."

The Foundation for Individual Rights in Education called the law the "gold standard" for students' procedural rights. Legislative Director Joe Cohn told Just the News it was the culmination of a five-year process largely led by Frazier, a former FIRE intern.

Title IX proceedings, however, have notable differences in the new law, which allows accusers to appeal "a Title IX allegation that does not result in a finding of a violation" and imposes limitations on their cross-examination.

"FIRE doesn't love dual appeals," Cohn said in a phone call, but "that ship has already sailed." The Kentucky bill was "carefully crafted to reflect" the federal Violence Against Women Act "without extending additional students to double jeopardy."

The procedural changes influenced by Lhamon's pressure have had real-world legal consequences for both colleges and accusers.

Last month, a South Carolina jury awarded $5.3 million to Andrew Pampu for defamation and civil conspiracy by his accuser, her boyfriend and father. It took nearly five years of litigation, according to his lawyer, Kimberly Lau of Warshaw Burstein.

Both Clemson University students, Pampu and Erin Wingo had a "consensual sexual encounter" in October 2015, he claimed. That was 18 months after Lhamon's second guidance document.

Wingo claimed she was incapacited by alcohol and couldn't remember the encounter after her boyfriend Colin Gahagan learned about it, but 10 witnesses testified at trial she didn't drink enough to be incapacitated.

The couple and Wingo's father David defamed Pampu "to at least 20 individuals" and successfully got him kicked out of his fraternity and punished by Clemson, which increased his suspension after Pampu appealed, Lau said. 

Gahagan confessed to Pampu in 2017 he lied in the Clemson hearing and that "Erin wanted to have sex [with Pampu] that night." The Daily Wire printed Ganahan's full written confession.

"The jury sent a message to others that our society does not condone spreading harmful lies about someone else" and setting back "true rape victims," Lau said.

Lau spokesperson Mollie Fullington told Just the News the court has yet to make public the verdict sheet, but she shared the breakdown, which includes $670,000 in punitive damages. Erin Wingo is on the hook for $3.15 million, her father David for $230,000, and Gahagan for $1.92 million. 

Greenville News reported the Wingos' counsel has appealed the verdict, while Gahagan's attorney filed a motion for post-trial relief based on his inability to pay and lack of evidence of "intentional defamation."

Pampu previously settled litigation against Clemson that involved a payout and removal of the "disciplinary notation" from his transcript, Lau said. (The News said it was $100,000.)

The Department of Education did not respond to Just the News queries on how these developments might affect its review of the 2020 regulations.