Troubling Provisions Being Added to the Violence Against Women Act ( VAWA ): Due Process Rights Threatened

by Hans Bader [Senior Attorney, Competitive Enterprise Institute] on March 23, 2012 ·[This will also be posted at Examiner.com tomorrow]

Provisions are being added to the 1994 Violence Against Women Act that could undermine due process on campus and in criminal cases, as civil liberties groups like the Foundation for Individual Rights in Education (FIRE) and civil libertarians like former ACLU board member Wendy Kaminer have noted. The changes are contained in a reauthorization of the act that is likely to pass the Senate over objections from some Republican senators like Charles Grassley of Iowa, who has also objected to the lack of safeguards against fraud in the law and the misuse of millions of dollars in taxpayer money. (Even if the Senate’s reauthorization does not pass the House, programs set up by the 1994 law will continue to operate.)

William Creeley of FIRE, and Wendy Kaminer, say that the Senate reauthorization would effectively result in a form of double jeopardy for accused students. Moreover, they point out, it would implicitly reinforce Education Department “guidance” demanding that colleges water down due process protections in campus disciplinary proceedings (a demand criticized by lawyers like Robert Smith, Jennifer Braceras, Ilya Shapiro, and Harvey Silverglate; leading law professor and former University of Chicago law dean Richard Epstein; the American Association of University Professors; and many civil libertarians and journalists. I am a former Education Department attorney who practiced education law for years, and I discussed why the Education Department’s guidance was legally unjustified under Title IX and federal court rulings here, here, here, here, here, and here).

One provision they do not address, but which Senator Grassley understandably objects to, is a provision in the VAWA reauthorization that would subject non-Indians to Indian tribal courts in domestic violence cases.  Historically, Indian tribal courts have only had jurisdiction over members of their own tribe. Moreover, defendants in tribal courts are not constitutionally entitled to the protections of the Bill of Rights, unlike state or federal courts (see Santa Clara Pueblo v. Martinez ) — although tribal courts have, in theory, been subjected to some of the strictures of the Bill of Rights pursuant to the Indian Civil Rights Act. As lawyer John Hinderaker notes, courts have ruled “that tribal governments are not bound by the Constitution’s First, Fifth, or Fourteenth Amendments.” Federal judges have  lamented the bias shown by some Indian tribal courts against non-Indians, as in cases where Indian tribal courts imposed hundreds of millions of dollars in damages on railroads over personal injury cases resulting from railroad tracks running through reservations that ordinarily would lead to damages only in the low thousands, suggesting a flagrant violation of Supreme Court decisions like BMW v. Gore. (See Judge Andrew Kleinfeld’s dissent in Burlington Northern Railroad Co. v. Red Wolf, dealing with a $250 million judgment imposed on a railroad by a tribal court.) …

Read the rest of the article here.

For more about VAWA and discrimination against boys and men n general see www.ncfm.org/category/issues/

For more about domestic violence and VAWA see www.saveservices.org and www.mediaradar.org/

Tags: discrimination against men], national coalition for men, ncfm, save services, vawa, violence against women act