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While We All Hate to Admit It, Trump is Right About Due Process and #MeToo Movement


President Donald Trump is only the latest of many – feminists, other women, and men – arguing that some kind of due process should apply before a person is fired, or suffers other kinds of losses, based upon allegations of misconduct.  In some situations these arguments are clearly correct as a matter of constitutional law.

But even when the Constitution doesn’t require it, a strong argument can be made that those accused should be accorded at least some measure of procedural protection – sometimes called “fundamental fairness” or “due process light” – based upon the basic principles of due process which have been followed for hundreds of years both here and in other common law countries.

The accused should be given, at the very least, an opportunity, reasonable under the circumstances, to defend himself before being permanently deprived on something of value, although this does not preclude decision makers from taking interim actions against him to protect others before the matter can be decided.

The arguments for affording the accused due process, or at least a minimal opportunity to defend himself, go well beyond legalistic ones, and could help quell the backlash which is reportedly already occurring.

Men, fearful that they may lose their jobs or livelihoods based solely upon allegations made by women they come in contact with, reportedly are deciding to reduce such contacts out of self protection.

This means that leaders may be reluctant to mentor females, to go to conferences or other events in foreign cities with them, or even to engage in serious discussions, or mild and customary workplace banter, which might be misunderstood or misconstrued to be offensive to some women.  This could be very harmful since most workplaces are still male dominated, and women can’t afford to be frozen out by males’ fears.

The Fifth Amendment provides that “No person shall be deprived of life, liberty or property without due process of law.”  Thus no federal, state, or municipal entity, including public universities, may deprive someone of liberty or property with first affording them all that due process requires.

While deprivation of “liberty” was once limited to literally confining someone, courts have repeatedly interpreted it much more broadly to include actions which interfere with a person’s ability to practice a profession or engage in many other typical activities. Indeed, even actions which create a stigma interfering with such activities have been held to constitute such a deprivation.

Similarly, while deprivation of “property” was once confined to the taking of tangible (real or personal) property, today it is construed more broadly to include a depriving someone of a job, an educational degree, or other intangible forms of property.  Thus a person’s “liberty” (broadly defined) or his “property” (broadly defined) cannot be adversely affected by a governmental entity without according him due process.

Since the principle of providing a person accused of wrongdoing with due process is so well accepted, one may wonder why so many feel it is appropriate in some #metoo situations to take precipitous action based upon nothing more than a few accusations, with no opportunity for any semblance of fairness.

One answer may be that many people believe that according the accused due process will always mean a lengthy legal hearing with lawyers, pre-hearing discovery, examination and cross examination, testimony under oath, a lengthy legalistic opinion, etc.  But this is not true, insists Banzhaf.

Due process is a defined term, but it is also a flexible one, and what it requires depends on the circumstances.  Thus, due process” means only the process which is due under a particular circumstance.

Thus a governmental employee about to be dismissed because of an accusation of rape, while not entitled to all the due process which is required in a criminal trial, is entitled to considerably more procedural protections that an employee about to be reprimanded for using inappropriate language in the workplace.

Due process is flexible, and may require little more than insuring that such a  person knows what he is accused of – especially since terms like emotional or verbal abuse can be vague – and has a reasonable opportunity to present some kind of defense before the deprivation takes place.

Another reason often advanced for taking action without affording the accused even notice of the charges against him and an opportunity to be heard – much less an opportunity to question his accuser or to employ an attorney to represent him – is that action must be taken so quickly to prevent any repetition of the sexual misconduct that due process must be dispensed with.

But this is a very common problem which the law has solved by providing for what administrative lawyers call a pre-termination proceeding, often accompanied by interim protective measures.

Suppose, for example, a powerful executive is accused by a large number of women of sexually molesting them in his office.  Obviously, similar statements by a large number of women can create a very strong presumption of guilt; more than enough to warrant taking immediate protective action, even before any kind of fair final determination can be made.  But the choice is not one of doing nothing – or at least doing nothing until there can be a fair hearing – or of firing him before the truth of the allegations can be determined in accordance with due process.

Until there can be a fair determination, the employee may be permitted to take a leave of absence, or be suspended indefinitely pending an appropriate proceeding.  This would fully protect others, while at the same time not taking any final action pending a full investigation and a fair proceeding.

An alternative would be to prohibit him from having any person enter his office, prohibiting all employees from entering his office until the allegations can be fully investigated, installing motion-activated video cameras in his office so that any inappropriate conduct will be detected, etc.  All of these actions are intrusive and highly objectionable, but they are certainly less severe and objectionable than being fired, being driven permanently out of a job, suffering a permanent loss of reputations, etc.

A third objection is that there is no need for any hearing, or any form of due process or fundamental fairness, based upon a central theme of #metoo: believe the women.

But although accusers should not longer be routinely disbelieved or ignored, it is also clear that at least some claims are and will be false and/or exaggerated.  Saying that all such claims must be fully believed, and so any proceeding to ascertain the complete truth is unnecessary and/or insulting to the complainants, flies in the face of hundreds of years of acceptance of the need for fair play, especially in “she said, he said” cases.

Any such policy would leave men completely at the mercy of any women they may work with, since they would be vulnerable to punishment without any reasonable opportunity to defend themselves.

Under such a scenario, it is logical that men would try to protect themselves by favoring males over females in hiring, in choosing whom to work with, selecting companions with whom to attend conferences, preferring to mentor males rather than females, and perhaps being reluctant to lunch with female workers.

While no one doubts that sexual misconduct – everything from rape to groping – is wrong and should be deterred by punishment, dispensing with all due process could harm women very severely by making it even more difficult to advance in so many workplaces still largely dominated by men.

JOHN F. BANZHAF III is a Professor of Public Interest Law at George Washington University Law School.

This is an opinion piece. The views expressed in this article are those of just the author.

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