How the Feds Use Orwell to Apply Title IX

Among the many anti-campus due process groups that have appeared in the past five years, the most prominent is Know Your IX, co-founded by two self-described sexual assault victims, Dana Bolger and Alexandra Brodsky. The group has an active presence on social media; trains activists to crusade against due process at their home campuses; and has sought to influence Congress. Know Your IX members appear to have been among the group applauding Congressman Jared Polis’ call for the expulsion of innocent accused students at a 2015 congressional hearing.

Perhaps understanding that outright opposing due process makes for bad P.R., Know Your IX representatives occasionally have made vague references to fairness in the campus adjudication process. They’ve never quite spelled out what they mean by “fair,” however, other than to say that an accused student shouldn’t enjoy all of the due process rights a criminal defendant possesses.

A recent letter from Know Your IX co-director Dana Bolger to the House Judiciary Committee makes clear that by a “fair” process, the organization actually means “unfair.” The letter contained two remarkable provisions. The first attempted to justify the Obama administration’s decision to ignore the requirements of the Administrative Procedure Act and issue the 2011 Dear Colleague letter—which eviscerated due process rights for accused students.

In her letter, Bolger acknowledged that in the 1997 and 2001 “Dear Colleague” letters dealing with sexual harassment on campus, OCR proceeded with a notice-and-comment period. Know Your IX then cited the two letters as justification for the Obama administration not seeking comment. She provided no explanation for her illogical argument—that is, notice and comment was good enough for the Clinton and Bush OCR, but the Obama OCR doesn’t have to utilize the procedure. Instead, without explanation, she suggested that the terms of the 2011 letter (preponderance of evidence, right of appeal to accusers, discouragement of cross-examination) were merely a “clarification” of the 1997 and 2001 documents.

This Orwellian argument is a mere setup for the letter’s second major claim—that students accused of sexual assault are treated more fairly than students accused of all other offenses on campus. Here’s Bolger: “By mandating fairness and equity in campus sexual misconduct proceedings, Title IX affords accused students the right to prompt investigations, regular updates, notice of rights, and trained adjudicators. In so doing, Title IX provides students accused of sexual assault far more procedural protections than are enjoyed by students accused of other disciplinary infractions, like perpetrating simple assault or selling drugs out of a dorm room.”

In these remarks, Bolger seems to have dropped her earlier comparison of sexual assault to plagiarism. Instead, she’s embraced an insinuation by OCR head Catherine Lhamon that colleges are hotbeds of drug-dealing activities, which the schools resolve not by going to police but instead by handling the matter internally.

Below are some comparisons of the fairness accorded to a student accused of drug-dealing, and one accused of sexual assault.

Title IX chart

Legal requirement to investigate:

And yet according to Know Your IX, the student in Column 2 receives fairer treatment than the student in Column 1. Orwellian.

Leave a Reply

Your email address will not be published. Required fields are marked *