EXPERT WITNESS: The 'Dear colleague' letter reign of terror

By Michael G. Brock

“No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.”
—statutory rendition of Magna Carta, 1354

“... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;”
—Amendment V, U.S. Constitution

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
—Amendment XIV, U.S. Constitution

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men”
—John Dalberg-Acton (Lord Acton), Letter to Bishop Mandell Creighton, April 5, 1887 published in Historical Essays and Studies, edited by J. N. Figgis and R. V. Laurence (London: Macmillan, 1907)

The framers of the United States Constitution seemed to recognize that nothing would be as dangerous to the survival of American Democracy as the denial of due process rights to all of its citizens. They considered it important enough to include in both the fifth and 14th amendments to the U.S. Constitution. Most Americans are familiar with most of these rights, the right to a trial by a jury of one’s peers, to be presumed innocent until proved guilty by proof beyond a reasonable doubt, to be presented with the charges and evidence against them, to have a right to present evidence of their innocence, to cross examine the prosecution witnesses, the right not to be made incriminate oneself, or to be tried twice for the same offense, among others.

It is fair to say that democracy and rule of law go hand in hand, and that we cannot maintain one without the other.i Clearly, that is why the judiciary is a branch of government separate from the legislative and executive branches of government. Much has been made of the Obama administration’s willingness to bypass the legislature through executive order, to the consternation and resentment of the legislature, with whom the majority of power ostensibly rests in our representational government, but relatively little has been said about its willingness to ignore legal and even constitutional rights when it found it expedient to do so.

One such brushing aside of the both legislative and judicial authority came in in the form of the “Dear Colleague” letter issued on April 4, 2011, by Russlynn Ali, Assistant Secretary for Civil Rights at the Education Department. Little noted outside of education circles when it was first issued, the letter admonished colleges receiving federal funds to established quasi-courts to investigate and adjudicate matters of sexual harassment and sexual assault. The letter stated that it derived its authority to require these investigations from Title IX of the Educational Amendments Act of 1972, a federal law which states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The clear intent of the law is to make sure that all students—and in particular, men and women—are afforded the same education opportunities, including the same extracurricular activities, such as athletics.

The idea that Title IX could or would be cited as a pretext for creating quasi-judicial systems devoid of due process of law and run by non-jurists whose notions of legal procedure are informed by extreme feminist ideology is a stretch probably not even envisioned by the framers of the law. But, armed with poor pseudoscience suggesting that 1 in 5 women who attended American universities would be raped during the college careerii, and wielding the threat of withholding the government fundingiii that major educational institutions are dependent upon, the establishment of these unconstitutional courts was forced upon America’s institutions of higher learning by the Department of Education Office of Civil Rights (OCR).

That the basis for this executive legislation was a fabrication was acknowledged even by the authors of the study themselves, who wrote a piece in Time Magazine stating that the study was being misquoted and should not be applied as it was by politiciansiv, and by the footnote acknowledgement of the Ms. Ali that, “This study also found that the majority of campus sexual assaults occur when women are incapacitated, primarily by alcohol.”

Indeed, Ms. Ali states on page 1 of her letter that, “Sexual violence, as that term is used in this letter, refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.” In this way she describes a bias that is so blatant that it would be almost comical, were it not that she is wielding so much arbitrary power by ordering colleges to set up quasi-courts and terminating the college careers of those men who are found guilty in those courts, and even some of those who are exonerated.

For what she is establishing by executive edict is that women (also referred to as “victims”) are not responsible for the use or abuse of substances, or for their actions while under the influence of those substances. By inference and practice, it is only males who are responsible for their behavior, whether sober or intoxicated, as well as for the behavior any female who may have feelings of guilt or remorse over her actions while in a similar state.

This is a truly remarkable position to take, not only because it harkens back to a time when it was a man’s responsibility to protect a woman’s honor but women had few rights, but also because, unlike a court of law where everyone is ostensibly responsible for their own behavior, it completely abdicates women’s responsibility for their adult decisions, setting them up as a privileged class under the guise of establishing equality between the sexes—the stated intent of the Title IX legislation.

That the dual intent of this edict is to excuse women from responsibility for their actions and hold men responsible for those actions, and that it is not in the least concerned about men’s rights, is clearly evident in the way it is applied. A case in point is that of Paul Nungesser, who was accused and exonerated of raping Emma Sulkowicz at Colombia University in August of 2012. Thanks to the mainstream media’s complete disregard of the facts of the case and clear bias in favor of the accuser, the accuser’s side of the story is well known and widely supported around the world at this point.

However, despite failing to win a conviction at the mandated lower threshold of a “preponderance” of the evidencev, and despite the fact that the defendant was not entitled to be represented by legal counsel, cross examine the accuser, or present pertinent evidence in the form of social media or other messages that contradict the accusers statements regarding the nature of the encounter, her motives, or her state of mind, Ms. Sulkowicz (AKA “Mattress Girl”), assisted by Columbia University, viciously and systematically harassed and threatened the person she accused of raping her, despite promises by the university that the matter would be kept confidential, and that the process would not be considered a criminal investigation.vi

Page 16 of the “Dear Colleague” letter makes it apparent that the accuser of sexual assault is entitled to protection by the University—indeed, they are required to provide protection from harassment: “Schools should be aware that complaints of sexual harassment or violence may be followed by retaliation by the alleged perpetrator or his or her associates. For instance, friends of the alleged perpetrator may subject the complainant to name-calling and taunting. As part of their Title IX obligations, schools must have policies and procedures in place to protect against retaliatory harassment. At a minimum, schools must ensure that complainants and their parents, if appropriate, know how to report any subsequent problems, and should follow-up with complainants to determine whether any retaliation or new incidents of harassment have occurred.”

The accused are apparently entitled to no such protection. Though Nungesser was found “not responsible” for the alleged attack, and though the local police and prosecutor found it not credible enough to pursue, Sulkowicz was not only allowed to attack Nungesser publicly, referring to him as her “rapist” in high profile pieces in the pressvii, she was given college credit and cum laude honors for her “art project:” carrying her mattress around campus to protest the alleged rape. Not only was nothing done to protect Mr. Nungesser against such harassment, her actions were given the status of a cause celeb by the media, and by Senator Kirsten Gillibrand, who attended a rally in her honor, invited her to the president’s 2015 State of the Union Address, and publicly referred to Paul Nungesser as Emma Sulkowicz’ rapist in an editorial in the Huffington Post.viii In doing so, this lawmaker not only showed contempt for due process of law, but any process that did not produce the results that she in her infinite wisdom deemed the outcome should be.

Ali, in her “Dear Colleague” letter, discusses the difference between the process she is proposing, and criminal due process, letting administrators know that even though there may be no criminal liability they are not exempted to conducting a Title IX investigation, and stating on Page 5, “In cases involving potential criminal conduct, school personnel must determine, consistent with State and local law, whether appropriate law enforcement or other authorities should be notified.” Colombia did not notify the criminal authorities of Ms. Sulkowicz rape allegations, as they are required to do not only by this edict, but also by existing legislation. Clearly, they did not think the allegations had any merit, but that did not keep them from allowing her to continually harass Mr. Nungesser.

On the contrary, her professors encouraged her behavior, gave her college credit and Magna Cum Laude honors for doing so! College President Bollinger ignored Nungesser’s request for protection and suggested that Nungesser not attend events where he might be subjected to harassment. Bollinger ignored multiple protests from Nungesser’s parents regarding the shabby way in which their son was being treated, and threats and intimidation from Sulkowicz,ix whose stated purpose in carrying her mattress around the campus was to harass Nungesser into leaving the campus before graduation.x

But where is the title IX investigation into this matter? Clearly, the rights of protection under the new rules of undo process belong only to the accuser because the accuser is female and therefore, part of a privileged class, and not to the accused, who is presumed to be male and therefore not deserving of the same rights. Under these rules, truth no longer matters, and the facts are whatever we say they are to a press too lazy and biased to investigate or even care if the facts happen to get in the way of a good story.

In June of 2016 when the media and the population was obsessed with the presidential campaign and subsequent election, the National Organization of Women (NOW) awarded Emma Sulkowicz the Woman of Courage Award in Washington D.C. Her resumexi boasts that she also received the following honors: 2015 Magna Cum Laude, Columbia University in the City of New York, New York, NY; 2015 National Student Movement Builder of the Year Award, United States Student Association, Washington, D.C.; 2014 34th Annual Susan B. Anthony Award, National Organization for Women, New York, NY; 2014 Ms. Wonder Award, The Feminist Majority Foundation and Ms. Magazine, Washington, D.C.; and, 2014 Ellen Battel Stoeckel Fellowship, Yale University, Norfolk, CT.

Artnet news reported on June 27, 2016 in the article that proclaimed Ms. Sulkowicz the winner of the NOW Woman of Courage Award: “Sulkowicz did what many rape victims cannot do; she channeled her fear into a public demonstration and brought attention to her rapist’s despicable act and highly inadequate punishment,” wrote NOW president Terry O’Neill in an email to artnet News. “Emma is an inspiration to all of us.”xii

The National Organization for Women New York City had this to say about awarding Ms. Sulkowicz the 2014 Susan B. Anthony award: “Emma Sulkowicz is an artist with a vision that has captured the hearts of people nationwide. In her new work, “Mattress Performance (Carry That Weight),” Emma has committed to carrying a mattress with her at all times on campus at Columbia University, symbolizing the burden that many sexual assault survivors carry with them every day. Her piece has resonated deeply with survivors, students, and the public. Emma’s artistic ability to translate her experience into artwork is a bold and courageous move and has created a massive student following. Her work is transforming the national conversation on sexual assault, inspiring students to question rape culture and giving survivors the courage to break their silence.”xiii

And The FEMINIST NEWSWIRE reported in its Nov 19, 2014 edition regarding the Ms. Wonder Award: “Through her extremely personal endurance performance project, Emma Sulkowicz launched a national movement and made the fight against campus sex assault visible in a new way. The #CarryThatWeight Movement was born out of Sulkowicz’s own experience as a rape survivor. Columbia University did not expel the student who raped Sulkowicz and two other females on campus. That prompted the idea for her senior thesis project, titled Mattress Performance: CarryThatWeight. Every day, Sulkowicz has carried a dorm room XL twin-size mattress to symbolize the weight she carries as a survivor who must still attend school with her rapist.

“A coalition of college students and activists who advocate for stronger campus policies on behalf of domestic violence and sex assault survivors coordinated the national #CarryThatWeight Day of Action. On October 29 [2014], students across the country carried mattresses and pillows across their campuses to stand in solidarity with survivors, and to show their support for the movement to end sexual violence and rape culture.”xiv

In the movie, “Judgment at Nuremberg,” Spencer Tracy portrays Chief Trial Judge Dan Haywood in the famous war crimes trial. At the end of the film, he has a final conversation with Burt Lancaster, who plays Dr. Ernst Janning, a judge coopted by the Nazis to serve their purpose of exterminating Jew and anyone they thought of as undesirable. Janning seems to be a man with a conscience, and he pleads for understanding with the trial judge: “You have to believe me,” he tells Haywood, “I never thought it would come to this.” Haywood offers no comfort. He tells Janning, “It came to this the first time you sentenced an innocent man to die.”

I recall another movie about the Holocaust, where someone looks out the window to witness the casual murder of Jew who dares to protest his treatment to the Nazi commander. The observer comments to the other person in the room, “You can hear about a thousand atrocities, but you only have to see one.”

The current talk about fake news is laughable. Of course there is fake news coming from the Right these days. Does the extreme Left really think there will be no pushback to what
has become nothing but shameless and cynical propaganda by those who are entrusted with keeping the American people informed? Of course there will be, and if push comes to shove I believe the Right is more likely to prevail. In a “might makes right” society the most ruthless and brutal rule.

The Left used to be the refuge from tyranny, but in its quest to dominate it has abdicated the essence of its appeal—its commitment to defend the rights of all who are not the favored
children of the establishment. It has become the enemy of all it once stood for. If it succeeds in abolishing due process, it will have succeeded in achieving what it once bravely prevented its enemies from accomplishing.

Impressive as it was, Spencer Tracy’s closing speech in Judgment At Nuremburg was wrong, it didn’t “come to that” the first time Janning sentenced an innocent man to die, it came to that the first time Jews, Slavs, the disabled, and anyone not reflecting the Nazi ideal were singled out for different treatment,xv attacked by others with impunity, excluded from participation as equal citizens, made to wear yellow stars, and imprisoned as a labor force for their differences, not when this discrimination led to its logical conclusion of physically taking the life of the “Untermensch. “xvi By then the “Endlösung”xvii was a forgone conclusion.
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i“...the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

Thomas Paine, Common Sense, 1776

ii“Dear Colleague” Letter, Page 2, “The statistics on sexual violence are both deeply troubling and a call to action for the nation. A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college.” This statement cites, CHRISTOPHER P. KREBS ET AL., THE CAMPUS SEXUAL ASSAULT STUDY: FINAL REPORT xiii (Nat’l Criminal Justice Reference Serv., Oct. 2007), available at http://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf.

iiiAccording the original complaint/lawsuit filed by Nungesser in 2015 against Columbia University and it’s representatives (P. 2), “According to information and belief, Columbia receives nearly 645,000,000 in Federal funding for research and development.” https://www.scribd.com/doc/262956362/Nungesser-Filed-Complaint

ivhttp://time.com/3633903/campus-rape-1-in-5-sexual-assault-setting-record-straight/ “There are caveats that make it inappropriate to use the number as a baseline when discussing rape and sexual assault on campus. First and foremost, the 1-in-5 statistic is not a nationally representative estimate of the prevalence of sexual assault, and we have never presented it as being representative of anything other than the population of senior undergraduate women at the two universities where data were collected—two large public universities, one in the South and one in the Midwest. Second, the 1-in-5 statistic includes victims of both rape and other forms of sexual assault, such as forced kissing or unwanted groping of sexual body parts—acts that can legally constitute sexual battery and are crimes...”

v“As part of these procedures, schools generally conduct investigations and hearings to determine whether sexual harassment or violence occurred. In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints...Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.” Dear Colleague Letter, P. 10, 11

vihttps://cathyyoung.files.wordpress.com/2016/04/nungesser-second-amended-and-supplemented-complaint.pdf Nungesser v. Columbia, Bollinger, Vu-Daniel, and Hirsch, April 25, 2015

viihttp://time.com/99780/campus-sexual-assault-emma-sulkowicz/ My Rapist Is Still on Campus, TIME, May 15, 2014

viiihttp://www.huffingtonpost.com/rep-kirsten-gillibrand/carrying-their-weight-giv_b_6516630.html Carrying Their Weight: Giving Voice to Survivors of Campus Sexual Assault, 01/21/2015 11:51 am ET | Updated Mar 23, 2015

ixhttps://www.nytimes.com/2014/12/22/nyregion/accusers-and-the-accused-crossing-paths-at-columbia.html?_r=0 Accuser and Accused Cross Paths on Campus, New York Times, Dec 21, 2014, “It’s not safe for him to be on this campus,” Ms. Sulkowicz said this month...”

xhttps://www.nytimes.com/2014/09/22/arts/design/in-a-mattress-a-fulcrum-of-art-and-political-protest.html New York Times Sept 21, 2016, “...she will continue the piece [carrying her mattress around campus] until the man she accuses of attacking her is no longer on campus, whether he leaves or is expelled or graduates, as she also will next spring.”
xihttp://www.emmasulkowicz.com/biocv/

xiihttps://news.artnet.com/art-world/national-organization-for-women-honors-emma-sulkowicz-527621

xiiihttp://nownyc.org/building-womens-leadership/susan-b-anthony-awards-3/

xivhttps://feminist.org/blog/index.php/2014/11/19/ms-wonder-awards-honor-young-grassroots-leaders-in-anti-violence-fair-wage-movements/ Ms. Wonder Awards Honor Young Grassroots Leaders in Anti-Violence and Fair Wage Movements, Nov 19, 2014 • 7:10 PM

xvhttp://www.annefrank.org/en/Anne-Frank/The-Nazis-occupy-the-Netherlands/Anti-Jewish-Decrees/ At the beginning of the Occupation, the Nazis basically let the Jews go about their business. This all changes in October 1940. Measures are introduced one after the other. Civil servants must sign an official declaration stating whether they are Jewish or not.

Just like in Germany earlier on, Jewish civil servants and teachers are fired from their jobs. At the beginning of 1941, all Jews in the Netherlands must register...Beginning in October 1940, Jews may no longer own their businesses. Jewish owners must register their businesses so that the occupiers can Aryanize them...After the summer of 1941, Margot and Anne [Frank] are required to attend the Jewish High School...Jewish students from going to the same schools as non-Jewish children...In addition, at the beginning of May 1942, they are forced to wear a yellow star with the word “Jew” prominently displayed on their clothing...June 12th 1942 is Anne Frank’s birthday; she turns 13. On that day she receives a gift from her parents that she really wants: a diary...She immediately begins writing in it...a list of things that [Jews] are no longer permitted: “Our freedom was severely restricted by a series of anti-Jewish decrees: Jews were required to wear a yellow star; Jews were required to turn in their bicycles; Jews were forbidden to use trams; Jews were forbidden to ride in cars, even their own; Jews were required to do their shopping between 3:00 and 5:00 P.M.; Jews were required to frequent only Jewish-owned barbershops and beauty parlors; Jews were forbidden to be out on the streets between 8:00 P.M. and 6:00 A.M.; Jews were forbidden to attend theaters, movies or any other forms of entertainment; Jews were forbidden to use swimming pools, tennis courts, hockey fields or any other athletic fields; Jews were forbidden to go rowing; Jews were forbidden to take part in any athletic activity in public; Jews were forbidden to sit in their gardens or those of their friends after 8:00 P.M.; Jews were forbidden to visit Christians in their homes; Jews were required to attend Jewish schools, etc.”

xvi“Subhuman Peoples”

xvii“Final Solution”
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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com.