On November 18, 2020, Attorney General Mark R. Herring informed NAACP Loudoun Branch and Loudoun County Public Schools (LCPS) that a Final Determination (Determination) had been made by the Division of Human Rights (DHR) in DHR Case No. 19-2652. In making its Determination, DHR used a procedure that poses a serious threat to due process, specifically using confidential witness statements as evidence against the LCPS.
The case addressed the admissions policies at the elite Loudoun Academy, where African American students were enrolled at lower rates than Asians and whites. While describing how the DHR collected information regarding the witnesses offered by the NAACP, the Determination makes the following statement:
Because of apparent witness concerns surrounding confidentiality and retaliation, the Division includes below a select group of pertinent narratives reported to the Division by the fact witnesses who responded to the Division’s inquiry through correspondence or interview.
Following that statement are slightly more than six pages of extracts from multiple sources who are identified only generically. Nothing in the Determination indicates whether LCPS was provided with a copy of the statements from which the quoted extracts were taken. Even if LCPS counsel received a copy of those statements, the testimony might well have been redacted to protect the identity of confidential witnesses (1VAC45-20-82 and 1VAC45-20-83.C). (The Department of Law’s regulations implementing the Virginia Human Rights Act are available here.)
The Determination also indicates LCPS counsel and outside counsel participated in interviews of LCPS witnesses. But there is no indication LCPS counsel participated in interviews of witnesses supporting the NAACP’s case. Was LCPS counsel given an opportunity to participate in interviews of witnesses supporting the NAACP case? If not, why not?
Imagine the following: You are accused of wrongdoing. The accusing party offers against you statements from multiple unidentified people. You have no opportunity to question the people making the statements offered against you. Also, the decision maker in your case can rely on those statements to make findings and conclusions that could have adverse legal consequences for you. How is that fair to you?
Confidential witnesses can be an important and legitimate tool to investigate allegations of wrongdoing. But the use of confidential witness statements as evidence against a person or organization to adjudicate accusations of wrongdoing is fundamentally different. DHR’s use of confidential witness statements to make findings and conclusions in its Determination poses a serious threat to due process, and threatens public confidence in the fairness of its determinations.
Due process is not a mere legal technicality. It is an important component of the rule of law. Under traditional notions of due process, a party accused of wrongdoing is entitled to:
- fair notice of the allegations being made against the party;
- meaningful opportunity to respond to the allegations;
- right to know the evidence being offered against the party;
- meaningful opportunity to challenge the evidence being offered against the party; and
- meaningful opportunity to offer evidence on the accused party’s behalf and in rebuttal to evidence offered by the accusing party.
Critical to the right to respond to, and defend against, allegations being made is the right of the accused party to question and cross-examine witnesses. The right to examine and cross-examine witnesses allows both sides the opportunity to:
- develop a full and complete record;
- establish whether witnesses have biases or motives that undercut or undermine their statements;
- establish whether witnesses made statements based on their personal knowledge or based on gossip, rumor, or other hearsay sources;
- ask witnesses to explain or clarify any ambiguities, vagueness, or gaps in their statements;
- ask witnesses to explain or elaborate the basis for any assumptions, inferences, or opinions in their statements;
- confront witnesses with any contradictions or inconsistencies in their statements; and
- give trier of fact a better opportunity to assess reliability and credibility of witnesses for both parties.
Furthermore, public confidence in the fairness of a legal proceeding will be undermined by the use of confidential witness statements as evidence in making findings and conclusions about alleged wrongdoing. Why should the public have confidence in legal proceedings where the accused party can be forced to wear a legal “blindfold” when trying to respond to and defend against statements made by witnesses whose identities are hidden by the government?
Although informal proceedings usually have fewer due process protections than formal hearings or trials, that informality should not be carried out in a manner that is unfair to a party. The informal proceedings of conference, mediation, conciliation or negotiation conducted by DHR (1VAC45-20-96) are not conducted like a formal hearing (1VAC45-20-110 and Virginia Code, Section 2.2-4020). But the proceedings can result in an adverse DHR decision that can have serious repercussions for the accused. Even though DHR cannot impose any penalties on the accused party (Virginia Code, Section 2.2-3907.F.), a DHR finding of “unlawful discriminatory practices” is a badge of infamy and may form the basis of further legal proceedings (Virginia Code, Section 2.2-3907.G.).
How is DHR furthering the Virginia Human Rights Act policy to “[p]rotect citizens of the Commonwealth against unfounded charges of unlawful discrimination” (Virginia Code, Section 2.2-3900.B.5) when it develops and uses procedures that reduce the ability of people and organizations to defend themselves against accusations of unlawful discrimination?
How would a person convinced they are a victim of unlawful discriminatory practices feel if they were accused of wrongdoing and were forced to defend themselves against confidential witness statements? Those seeking justice should do so without using unjust means. Those seeking justice for themselves should not claim they are entitled to inflict on others unfair procedures that they would not be willing to have inflicted on themselves or others dear to them.
The DHR regulations and the procedures used in DHR Case 19-2652 place any person or organization accused of discriminatory practices at a serious disadvantage if they agree to informal methods of conference, mediation, conciliation or negotiation (1VAC45-20-96). If they agree to procedures short of a formal hearing, they will not have a right to question or cross-examine witnesses against them, including witnesses who are unidentified.
If a person or organization accused of discriminatory practices wants the right to question and cross-examine witnesses against them, then they should hire a duly-licensed Virginia lawyer to represent them at a formal, public hearing where their attorney will be able to question and cross-examine witnesses (See 1VAC45-20-110 and Virginia Code, Section 2.2-4020.C.). Otherwise, they risk losing a valuable component of due process that has deep roots in American law.
DHR should amend its regulations to eliminate the use of confidential witness statements to make findings and reach conclusions in its determinations. Apart from the threat to due process that such a practice creates in DHR proceedings, imagine the legal havoc and unfairness that would result if the practice of using confidential witness statements to make decisions were extended to other legal proceedings conducted by other Virginia agencies and departments. Virginians should not have to worry that other agencies and departments might decide to follow DHR’s example.
Emilio Jaksetic, a retired lawyer, is a Fairfax County Republican.