All posts by Hans Bader

Hans Bader is a senior attorney at the Competitive Enterprise Institute.

The Systematic Eradication of Conservative Thought on Campus

Progressive faculty justify the absence of moderate and conservative voices on campus by saying that conservatives are stupid. As a result, moderate Republicans with Ivy League degrees and genius level IQs sometimes can’t find a job in academia.  My former boss had a degree from the highest-ranked law school (Yale) and had published scholarly articles, but could not find a law faculty job as a young lawyer due to his moderately-conservative leanings. (He later successfully argued a landmark Supreme Court case.

But ignorance certainly doesn’t keep progressives from being hired, especially in women’s studies departments. A classic example is Barbara LeSavoy, Director of Women and Gender Studies at The College at Brockport in New York, who thinks the President can rule by decree. Every schoolchild in her generation was taught that Congress enacts laws, not the President (the President can successfully veto a law only if it was passed with less than two-thirds of the votes). But LeSavoy is unaware of this basic constitutional requirement (typical of all Western democracies), and thinks the President can ban all guns just by issuing a decree. She penned an October 10 op-ed in the Rochester Democrat and Chronicle urging President Obama to ban guns: “I urge President Obama to ban firearm possession in America. He is the President of the United States. He can change the country. He can do it today.”

Her op-ed was aptly summed up by a commentator as “Please, Dear Leader — Ban Firearms By Decree.”

Writing “with a bleeding heart,” LeSavoy declared: “I admire Obama. But he has let me down.” Her embattled but resilient faith in her collectivist savior could be fully restored if he would simply “ban firearm possession in America.” Doing this would be a matter of utmost simplicity, she insists, since Obama “is the president of the United States. He can change the country. He can do it today. I believe in him.”

In fact, the only thing about America LeSavoy apparently finds worthwhile is Barack Obama and what she thinks he represents.

“While politically minded, I am not overly patriotic,” she explains. Yet during the 2008 campaign, “my two daughters, partner, and I ate every meal in our house on Obama placemats [that were] plastic-coated, plate-sized paper rectangles with an image of his face framed by colors of the flag.”

By making such a bourgeois purchase, LeSavoy committed an act of capitalist apostasy, but it was in what she earnestly believed was a good cause. While “this mealtime ritual of American allegiance was odd for me,” she found strength in the act of looking “at the image of his face each day and [believing] that he really could be the change in America.”

To be sure, she continues, that faith has been sorely tested. She describes herself as “jaded” in 2012 as Obama stood for reelection, because some of his promises weren’t fulfilled. And yet, she proudly recalls, “I did not waver. I dug into our old dining room cupboards, and found our worn but resilient Obama placemats.”

Those sacred totems were restored to their proper place in the dining room, where LeSavoy, her daughters, and her partner could take strength from the visage of the Dear Leader . . . .

“Firearm possession should be banned in America; president Obama can orchestrate this directive,” insists LeSavoy – who somehow obtained a doctorate degree without learning even the rudiments of constitutional law…. Obama’s presidency “can be remembered as a remarkable turn in United States history where a progressive leader forever changed the landscape under which we live and work,” LeSavoy exults in giddy ignorance of the significance of her mixed metaphor.

Ironically, progressives justify the absence of conservatives from academia on the ground that conservatives are disqualified by their stupidity. “Robert Brandon, chair of the Duke University Philosophy Department, gives this explanation of why faculties at U.S. universities usually lean to the political left: ‘We try to hire the best, smartest people available. If … stupid people are generally conservative, then there are lots of conservatives we will never hire.’” But Republicans actually have a slightly higher average IQ than Democrats.

Progressive faculty also claim that conservatives would rather work in the business world or a conservative think-tank than in academia, ignoring the fact that plenty of conservatives would like a cushy academic job where they can teach only a few courses a year and get paid better than an employee of a low-paid conservative think-tank. Several years ago, Slate reported that the average think-tank senior fellow was paid about $160,000 per year. But while this may have been true for liberal think-tanks, which can count on lots of foundation and government money, it was certainly not true for conservative think-tanks: At the time, my employer, a free-market think-tank, paid most of its senior fellows less than $100,000 per year, despite being located in one of America’s highest-living-cost areas, Washington, D.C. (Some senior fellows were paid closer to $60,000, and non-senior fellows were paid as little as $40,000 per year).

Progressives also falsely claim that Republicans are scarce in academia because they are “anti-science.” Most jobs in academia have nothing to do with science, but this bogus rationale gets invoked even by liberal English instructors like Cornell’s Kenneth McClane.

Some progressives are themselves hostile to (and ignorant of) scientific advances. The agronomist Norman Borlaug, who pioneered the Green Revolution, saved perhaps a billion lives in the Third World by developing high-yield, disease-resistant crops through biotechnology. For this, he received the Nobel Peace Prize, the Presidential Medal of Freedom, and the Congressional Medal of Honor. For this, he was smeared in the liberal magazine The Nation, which has an irrational phobia of biotechnology and genetic engineering, as being “the biggest killer of all.”

Yik Yak—Latest Target of the Anti-Free-Speech Left

Last Wednesday, 72 left-wing groups, including the Feminist Majority Foundation, American Association of University Women, and Leadership Conference on Civil and Human Rights, asked federal civil-rights officials to crack down on anonymous politically-incorrect speech on campus, which they claim violates federal civil-rights laws such as Title IX. They claim they are concerned about “harassment” on anonymous social media applications like Yik Yak, as the Chronicle of Higher Education notes in the article “Women’s Groups Urge Colleges and Government to Rein in Yik Yak.”

Related: Divestors—No Free Speech for Opponents

But their October 21 letter to the Education Department’s Office for Civil Rights makes clear that their real goal is to restrict free speech, not just “harassment,” since the letter explicitly labels constitutionally-protected speech as “race-based harassment.” It seems their real goal is to silence dissent on campus by eliminating students’ ability to express their opinions anonymously. The ability to speak anonymously gives moderate and conservative students a chance to speak without vilified or punished by left-wing campus administrators or bullied by student government officials (who sometimes defund campus newspapers for having the temerity to print a moderate or conservative viewpoint about a racial or sexual issue.).

As their letter puts it, “Anonymous race-based harassment through Yik Yak is also pervasive on college campuses. At American University in Washington, DC, for example, Yakkers posted successive invidious comments targeting African-Americans, such as ‘Their entire culture just isn’t conducive to a life of success. It just isn’t. The outfits. The attitudes. The behavior.’”  Whether or not this sentiment is racist, it certainly is not “harassment.”  Indeed, even black newspaper columnists and entertainers regularly lament cultural impediments to success in the black community. Moreover, there is no “racism” exception to the First Amendment.  In 1993, a federal appeals court cited the First Amendment to overturn a fraternity’s discipline for a racist, sexist “ugly woman” skit, in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University.  And calling racist viewpoints “harassment” does not change this, because as another federal appeals court explained in DeJohn v. Temple University (2008), “there is no ‘harassment exception’” to free speech about racial and sexual issues on campus.

Related: Is Yale Using Title IX to Trump Free Speech?

Requiring colleges to punish what is perceived to be “race-based” speech would endanger even viewpoints that are mainstream positions in society at large, but are disapproved of by politically-correct college campus administrators. Under campus hate speech and “harassment” codes, students have been subjected to campus disciplinary proceedings, in violation of the First Amendment, merely for expressing commonplace opinions about sexual and racial issues, such as criticizing feminism or affirmative action, or discussing homosexuality or the role of race in the criminal justice system.

Wesleyan University in Connecticut provides a recent example of how even mainstream conservative viewpoints are targeted for suppression on campus, in a saga so extreme that it drew criticism from the generally liberal Washington Post columnist Catherine Rampell:

In September, sophomore Bryan Stascavage — a 30-year-old Iraq veteran and self-described “moderate conservative” — wrote a column for the Wesleyan Argus. In it, he criticized the Black Lives Matter movement — not the movement’s mission or motivations, but its tactics and messaging, particularly those of its more anti-cop fringe elements.

The essay was provocative, but it contained neither name-calling nor racial stereotypes. It was no more radical than the conservative commentary you might see on mainstream op-ed pages such as this one. That didn’t stop all hell from breaking loose.

Within 24 hours of publication, students were stealing and reportedly destroying newspapers around campus. In a school cafe, a student screamed at Stascavage through tears, declaring that he had “stripped all agency away from her, made her feel like not a human anymore,” Stascavage told me in a phone interview. Over the following days, he said, others muttered “racist” under their breath as he passed by.

The Argus’s editors published a groveling apology on the front page. They said they’d “failed the community” by publishing the op-ed without a counterpoint and said it “twist(ed) facts.” They promised to make the paper “a safe space for the student of color community.” This self-flagellation proved insufficient; students circulated a petition to defund the newspaper.

The Wesleyan student government has now voted to effectively cut the newspaper’s funding.

Related: A New Age of Campus Censorship

In their October 21 letter, the left-wing groups essentially ask the Education Department’s Office for Civil Rights to repeal the First Amendment as to internet speech and anonymous speech, complaining that colleges have cited “vague First Amendment concerns” in refusing to crack down on such speech.  (The Supreme Court ruled that anonymous speech is generally protected by the First Amendment in McIntyre v. Ohio Elections Commission (1995)).

As they note, the Office for Civil Rights has already pressured colleges to adopt what are effectively campus speech codes in its recent “Dear Colleague” letters to the nation’s school officials, which label certain kinds of speech as probative of racial or sexual harassment: “In its October 2010 Dear Colleague Letter, OCR clarified that prohibited harassment may take many forms, including  . . graphic and written statements, which may include use of cell phones or the Internet . . OCR should also make clear that the First Amendment does not prevent schools from taking action” to restrict such speech, whether it “occurs in-person or online.”

It asks OCR to force colleges to take actions such as investigating “all” complaints of “online harassment,” whether or not the speaker is “anonymous”; bringing “campus disciplinary proceedings against” such “individuals”; blocking or “geo-fencing of anonymous social media applications that are used to . . . harass students”; and “barring the use of campus wi-fi to view or post to these applications.” Thus, it seeks to ban entire applications from campus based on the speech of some of their users, and to keep students from even seeing what is posted on them, keeping them in the dark about their content.  (The Supreme Court has described such blanket bans as being as foolish and harmful as “burning the house to roast the pig,” in its 1997 decision striking down a ban on indecent internet speech.)

But there is no “internet” exception to free speech about racial or sexual issues (or a blanket “hostile environment” exception, for that matter). That’s why the Ninth Circuit Court of Appeals dismissed a lawsuit based on a “hostile environment” that it assumed was created by a white professor’s anti-immigration emails. In that decision, Rodriguez v. Maricopa Community College (2010), it relied on the First Amendment to quash a racial harassment suit against the professor for sending those emails, which a college’s Hispanic faculty claimed created a hostile work environment in violation of Title VII of the Civil Rights Act and 42 U.S.C 1983.

Some of the letter’s demands are probably too extreme to be endorsed by the Office for Civil Rights.  But in the past, it has sometimes shown a disregard for the First Amendment and limits on its statutory jurisdiction.  As I noted earlier in The Wall Street Journal, “the Education Department, where I used to work,” is

“pressuring colleges to adopt unconstitutional speech codes in the name of fighting sexual harassment. It has disregarded many court rulings in doing so.

“For example, the Education Department has wrongly ordered schools to regulate off-campus speech and conduct. That contributed to the harassment charges against Prof. Laura Kipnis, who was accused over a politically incorrect essay she wrote in the Chronicle of Higher Education and statements she made on Twitter. Court rulings like Roe v. Saint Louis University (2014) reject Title IX claims over off-campus conduct, but the Education Department ignores them. It also ignores court rulings like Klein v. Smith (1986) emphasizing that the First Amendment usually bars public schools from restricting off-campus speech. For example, the Education Department told schools to regulate comments ‘on the Internet’ in an October 2010 letter. In 2014, it demanded that Harvard regulate off-campus conduct more.”

The Office for Civil Rights should nevertheless keep in mind that it — and individual OCR officials — can be sued for enforcing the civil-rights laws in a way that violate the First Amendment. OCR’s demands under the civil-rights laws were once held to have violated the First Amendment in Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board (1978). A chapter of the Klan had sought to meet together during non-school hours in an empty classroom, the way other groups were permitted to do by the school district. But it was barred from doing so by the school district, acting under pressure from the Office for Civil Rights, which argued that its presence would be illegal racial discrimination. A federal appeals court ruled that the school district and OCR had violated the Klan’s free-speech rights, which could not be overridden by Title VI of the Civil Rights Act or OCR’s requirements.

Similarly, another federal appeals court ruled that individual federal civil-rights officials could be sued for restricting speech in White v. Lee (2000).  That ruling emphasized that speech can’t be punished just because it incites illegal discrimination. It also ruled that federal officials could be sued for threatening citizens with civil fines for speaking out against a minority housing project, even if the speech persuaded a city to delay a housing project that would house members of a protected minority group. That decision also indicated that the restrictions on speech found in workplace racial or sexual harassment rules cannot be applied to society generally under non-workplace discrimination laws.

The NY Times Reveals the Stupidity of ‘Yes Means Yes’

On October 15, The New York Times published a balanced news story that inadvertently revealed the stupidity of “Yes Means Yes” policies. Those policies redefine a great deal of consensual sex and touching as “sexual assault,” and effectively require college students to engage in “state-mandated dirty talk” during sexual encounters (as one supporter of “Yes Means Yes” policies gloated). That potentially violates the Constitution, and such policies have led to costly lawsuits against colleges that have such policies.

By printing ideologically inconvenient truths, the Times allowed the stupidity of “Yes Means Yes” policies to shine through, rather than covering up their stupidity. This was remarkable for The Times, which usually can’t cover social issues or discuss the failures of big government without injecting a doctrinaire left-wing slant. It quotes the developer of the “Yes Means Yes” curriculum admitting that under “Yes Means Yes,” “you have to say ‘yes’ every 10 minutes” during a sexual encounter to avoid sexual assault charges, resulting in constant awkward communication:

What does that mean — you have to say ‘yes’ every 10 minutes?” asked Aidan Ryan, 16, who sat near the front of the room.

“Pretty much,” Ms. Zaloom answered.

It quotes a female student calling it “really awkward and bizarre”:

The students did not seem convinced. They sat in groups to brainstorm ways to ask for affirmative consent. They crossed off a list of options: “Can I touch you there?” Too clinical. “Do you want to do this?” Too tentative. “Do you like that?” Not direct enough.

“They’re all really awkward and bizarre,” one girl said.

This illustrates the complete unworkability of “affirmative consent” proposals like the American Law Institute’s draft sexual assault definition in its proposed revision of the Model Penal Code. That provision, modeled on “Yes Means Yes” policies, seeks to criminalize non-violent sex and romantic touching in society, (even if it was welcomed by the participants) unless there was “affirmative” consent in advance.

As Megan McArdle noted in The Atlantic, under that criminalization proposal, a great deal of harmless touching could well be deemed a crime, including this hypothetical provided by lawyers and law professors: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”

Unfortunately, there is one shortcoming in the New York Times story: it repeats the erroneous idea spread by the San Francisco Chronicle that all drunk consensual sex is already legally rape on campus under California’s “Yes Means Yes” law regulating campus sex. In reality, as defense lawyer Scott Greenfield, legal commentator Walter Olson, and I have all explained earlier, that law only bans incapacitated sex, not all drunk sex.  But The Times writes:

The “no means no” mantra of a generation ago is quickly being eclipsed by “yes mean yes” as more young people all over the country are told that they must have explicit permission from the object of their desire before they engage in any touching, kissing, or other sexual activity. With Gov. Jerry Brown’s signature on a bill this month, California became the first state to require that all high school health education classes give lessons on affirmative consent, which includes explaining that someone who is drunk or asleep cannot grant consent.

Although California’s “affirmative consent” law does not ban all drunk sex, some campus “affirmative-consent” policies do, invading the privacy of students (there is no logical reason why a married couple should not be able to have a glass of wine before sex). But California’s law does heavily intrude into people’s private lives, and create a climate of fear, as some of its most outspoken supporters readily acknowledge.

Ezra Klein is the editor-in-chief of the liberal publication Vox, and a leading supporter of California’s “affirmative consent” law. He says that it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between, and “create a world where men are afraid,” which he justifies by saying that “men need to feel a cold spike of fear when they begin a sexual encounter.”  He writes that California’s “Yes Means Yes” law…

“…tries to change, through brute legislative force, the most private and intimate of adult acts.It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test. The ‘Yes Means Yes’ law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value…. If the ‘Yes Means Yes’ law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it….  Men need to feel a cold spike of fear when they begin a sexual encounter…. To work, ‘Yes Means Yes’ needs to create a world where men are afraid.”

Education Dept. Rules on Campus Rape Called Illegal

The College Fix published an interesting article, “Department of Education shredded for lawless overreach in Senate hearing.” It was about Congress getting annoyed with the Education Department for illegally imposing mandates on colleges and schools out of thin air, without even going through rulemaking or the notice and comment required by the Administrative Procedure Act (APA). Examples include school bullying rules and counterproductive mandates for handling sexual harassment and assault claims.

As the College Fix notes, the Education Department’s Office for Civil Rights, where I used to work, has dictated sweeping “changes in how colleges and universities handle sexual-assault allegations and investigations.” The Education Department requires colleges to comply with an intricate and very burdensome set of rules (66 pages), beginning with a 2011 Dear Colleague Letter, even though that letter explicitly (and falsely) claimed it was not adding any requirements to applicable law.

As the College Fix observes, that letter “was issued without a notice-and-comment process, making OCR’s guidance arguably unenforceable, yet the office has launched Title IX investigations against scores of schools for allegedly violating its unenforceable rules emanating from that letter. OCR’s guidance overreach has been weighing on Sen. Lamar Alexander, R-Tennessee, chairman of the Senate committee that handles education, and President George H.W. Bush’s education secretary, who said the letter circumvented ‘the principles of transparency and accountability.’”

Since that letter, OCR has issued tons of additional “guidance” that schools must follow, some of it harmful to both victims and wrongfully accused people. That has triggered a vast expansion of university Title IX bureaucracies that were already growing. It has also held individual colleges liable for not complying with additional requirements made up after the fact in pending Title IX investigations.

For example, a recent settlement with the University of Virginia requires it to investigate even when the accused has already admitted guilt (even though that could needlessly force a victim to relive her trauma) and even in “cases in which students chose not to file a formal complaint” or even to pursue an “informal resolution process.” Earlier, it faulted Michigan State for not investigating a false complaint fast enough, even though the complainant didn’t want a college investigation at all, and it suggested the University might have to offer the false complainant academic “remedies“ as a result.

Sen. Alexander also said the Education Department’s Office for Civil Rights was making up rules out of thin air in its 2010 school “bullying” guidance, which was issued without any notice and comment, even though it triggered the APA’s notice-and-comment requirement in imposing “significant” new obligations on schools. (The Education Department has attempted to federalize school bullying and define it in an overly broad way that violates freedom of speech, and has no basis in Title VI, Title IX, and the Rehabilitation Act, as I previously explained here and here.)

As Sen. Alexander noted, Congress had deliberately left this issue to be handled by state and local governments, not the federal Education Department, when it “purposely left out prescriptive rules in its recent education reauthorization bill” because “nobody” in Congress wanted the Education Department to act as a “‘national school board’ to set bullying policies for 100,000 schools.” He asked Acting Assistant Secretary Amy McIntosh “where does the Department of Education get the authority even to issue a guidance or even a rule or regulation on bullying? . . . The United States Senate doesn’t agree that the federal government ought to be telling the local school what its bullying policy ought to be.”

The examples of bureaucrats making up rules out of thin air that Senator Alexander cited are just the tip of the iceberg. A recent report by College Presidents discusses how the Education Department is flooding schools with obscure, uncodified, but very costly rules, in violation of the Administrative Procedure Act. Most of the rules they cited had nothing to do with Title IX, bullying, or civil rights.

We discussed earlier how the government is misinterpreting and misapplying Title IX to attack free speech by incorrectly redefining protected speech as verbal “sexual harassment”, in a way at odds with federal court rulings, in past commentaries you can find here and here. We also discussed how the government is misusing Title IX to erode the due process rights of people accused of sexual harassment or misconduct, in a way that violates the Administrative Procedure Act, here, here, and here.

Education Department Rewards False Complaints of Abuse

The Education Department, where I used to work, is becoming more and more extreme in how it misinterprets and misapplies federal law. For example, the Education Department has thumbed its nose at federal court rulings by wrongly creating entitlements for people who make false discrimination and harassment complaints—even though such baseless complaints can make life miserable for the victims of such false allegations (and cause serious problems for the institution they work for or attend).

Federal judges have ruled that people who lie and file sexual harassment charges over conduct they falsely claim was unwelcome can be disciplined, in cases such as Vasconcelos v. Meese (1990). But in a recent Title IX investigation of Michigan State University, the Education Department required university officials to offer “remedies” to “Student A,” whom both it and the University found had made a false allegation of sexual assault against two students.

The Education Department’s strange logic was that the university did not begin proceedings against the accused students fast enough (even though it immediately kicked them out of their dorm and ordered them to stay away from the accuser).

The brief delay in the investigation was not because the university was indifferent to sexual abuse; it was because the complainant decided not to file formal college charges against the accused (the criminal justice system found her complaint so unsupported by evidence that the accused were never charged, and she declined to pursue formal charges at the college level). It is absurd to demand swift college prosecution of innocent people when the accuser herself does not demand it.

The accused students, whose lives were transformed for the worse by the charges, were innocent, under the Education Department’s own admission. The university investigator ultimately found their conduct was welcome, and thus not sexual harassment or assault. Moreover, the Education Department’s Office for Civil Rights (OCR) itself noted in pages 30-31 of its investigative report that “OCR’s review of the investigator’s report and his supporting documentation led OCR to conclude that the preponderance of the evidence did not support a finding that Student A was subjected to unwelcome sexual conduct that created a sexually hostile environment.”

Yet, the Office for Civil Rights argued that the college should “remedy” the imaginary harm caused by its failure not to process her false complaint faster. On pages 40-41 of its report, it mandated that “under the terms of” its agreement with the university, the university will contact Student A and “offer” her “remedies to address any harm incurred as a result of the University’s delay in processing [her] complaints,” which might involve things like paying for counseling, providing academic assistance, or letting her retake a class she was enrolled in during that period.

This curious demand by the Education Department raised eyebrows even at left-leaning publications such as the Chronicle of Higher Education, which noted that “the department’s 42-page letter outlining its findings is an illustration of just how difficult it can be for colleges to comply with the [administration’s] beefed-up interpretation of . . . Title IX.”

As a Chronicle reporter observed, after Student A complained to police and the university hospital of being assaulted, the university took immediate action to protect her, by kicking the accused students out of her dorm the next day, moving them “into a different dormitory,” and by “telling them to avoid social gatherings and not to contact Student A.”

Such actions against people accused of harassment or assault are known as “interim measures,” since they are temporary measures imposed on people even before they may be found guilty, and even though they later may be found innocent. Such measures can raise serious due-process issues when they last for a long time; are based on very dubious charges; or inflict serious financial or educational harm on the accused. Yet the Education Department has told some colleges to impose such measures as a matter of course whenever assault or harassment are alleged.

The university did not ignore any complaint from the accuser. Indeed, as the Chronicle noted, Student A herself did not even “file a sexual-harassment complaint with the university”:

Days after Student A reported the assault, the county prosecutor’s office announced it would not press charges against the accused students. Student A then told Michigan State she had decided not to file a sexual-harassment complaint with the university, saying she was mainly concerned about running into the men in their residence hall (they’d been reassigned by this point). She got . . . personal-protection orders forbidding the two male students to follow her or to communicate with her, among other things. University staff members met with the male students to make sure they understood what they were allowed to do.

After all that, university officials considered the matter closed.

But when the Office for Civil Rights got wind of media reports about the alleged assault, it reached out to Michigan State and “offered technical assistance.” Soon after, the university began an outside Title IX investigation to determine if the alleged assault had violated its sexual-harassment policies, even though the student had still not filed a formal complaint. . .

The outside investigator finished work at the end of 2010, and determined that there was not enough evidence to suggest the university’s harassment policy had been violated. The Office for Civil Rights agreed, saying in Tuesday’s letter that the investigation was “thorough and adequate” and that evidence did not support the claim that Student A had been subjected to unwelcome sexual conduct.

Since Student A’s complaint was untrue, and the college immediately shielded her from exposure to the accused (protecting her from any potential retaliation), it is hard to fathom what possible harm the Education Department thinks she could she have experienced from the university not investigating her charges faster. Presumably, she would not have benefited from the university deciding even sooner that she was not telling the truth.

Indeed, its discovery that her charges were unfounded may have undermined any basis she might otherwise have had for extending the no-contact orders she obtained against the men falsely accused, and for excluding them from shared areas on campus. Indeed, this might have been the very reason she didn’t ask for, and apparently didn’t even want, the formal investigation that the Education Department wanted the college to bring even faster.

In short, contrary to what Education Department suggested in its investigative report, there is no reason to think there was any harm to Student A from the university’s “delay” in formally “processing” her accusation. And there is logically no way to “remedy” a non-existent harm. Yet, its investigative report requires MSU to contact Student A to offer her “remedies” for that “delay.”

Troublingly, this is not the first time that the Education Department required remedies for a student who apparently made a false accusation. In a 2014 letter announcing the results of its investigation of Tufts University, it complained that the university allowed in certain evidence of an accused student’s innocence, leading to Tufts finding him not guilty of sexual assault, rather than excluding it as untimely or inadmissible.

For example, it criticized Tufts for “allowing the Accused to submit an Addendum” responding to the charges after the deadline, and letting him show the complainant lied about her medical history, which he obtained by pretending to be a medical student. To resolve the investigation, Tufts had to pay the complainant “monetary compensation,” even though the agency never stated that she was sexually assaulted, and even though it lacked the legal authority to award monetary damages.

The Education Department also found Tufts in violation of Title IX because it took over a month before “requiring the Accused to move out of the residence hall,” and left her to attending a class “together with the Accused” rather than barring him from that class, which “thus exposed” her “to close physical proximity to the Accused.” But if the accused was not guilty of sexual assault, then he was not dangerous, and the complainant had no right to demand that he be excluded from his classes and dorm.

The Education Department’s demands are impossible to square with well-established case law. No court has ever found an institution in violation of Title IX, or any federal law against sexual harassment, for failure to remove an accused person from proximity to the complainant when the accused was not actually guilty of sexual harassment. Indeed, courts often rule for institutions sued for harassment even when the accused individual was guilty, and the institution either never removed the accused from proximity to the complainant (even after disciplining him) or only removed him after he was found guilty.

The Education Department’s position is illogical, and puts institutions in a difficult bind. Forcing an institution to tolerate false charges could theoretically subject it to a risk of liability in a lawsuit brought by the defamed individuals: Courts have recognized that sexual slander and smears can sometimes create a sexually hostile environment in violation of federal law in cases such as Jew v. University of Iowa (1990) and Spain v. Gallegos (1994), at least where the slander is based on sexual animus.

The Education Department’s Office for Civil Rights has discouraged colleges from allowing cross-examination by the accused, even though the Supreme Court described cross-examination as the “greatest legal engine ever invented for the discovery of truth” in Lilly v. Virginia (1999), and even though a few court rulings have required colleges to allow cross-examination, such as Donohue v. Baker (1997).

Education Department officials have also sought to gut the presumption of innocence. The Yale Law Journal noted in 1987 that “courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” But in an April 4, 2011 “Dear Colleague” letter, the Office for Civil Rights ordered colleges not to use that longstanding standard.

In a fashion reminiscent of double jeopardy, the Education Department has also forced colleges like Southern Methodist University to review all past complaints they dismissed in prior years (even when those dismissals were not challenged by any complainant), and resolve them to the agency’s liking—potentially resulting in expulsion of a student previously found not guilty.

Its Office for Civil Rights has also sought to redefine constitutionally protected speech as verbal “sexual harassment.” For example, it has told schools to regulate off-campus conduct (apparently including speech on the “internet”), which are beyond Title IX’s reach under decisions like Roe v. St. Louis University (2014); and it pressured Tufts University to regulate academic speech not even “directed at” the complainant (creating serious First Amendment problems under the 2010 Rodriguez decision).

Federal Aid Drives up College Costs, Study Finds

The federal government is now admitting that its own financial aid is partly to blame for rising tuition, reports Blake Neff in The Daily Caller:

A new report by the Federal Reserve Bank of New York has found that the massive investment in grants and student loans by the federal government is a major contributor to the unbridled growth in the cost of attending college.

College tuition rates have consistently risen faster than inflation for some 25 years. One theory for the rise, dubbed the “Bennett hypothesis,” was put forward by Ronald Reagan secretary of education William Bennett, who argued that hikes in government student aid simply gave colleges a free pass to hike tuition.

Now, the New York Fed’s research suggests there’s some merit to the idea, and that it means the government could be spending billions on education to no effect.

“While one would expect a student aid expansion to benefit recipients, the subsidized loan expansion could have been to their detriment, on net, because of the sizable and offsetting tuition effect,” the paper concludes.

On average, the report finds, each additional dollar in government financial aid translated to a tuition hike of about 65 cents. That indicates that the biggest direct beneficiaries of federal aid are schools, rather than the students hoping to attend them.

As Neff notes, this finding is consistent with some earlier studies on the subject, such as a 2012 paper by Harvard and George Washington University economists, and a 2007 paper that found that higher Pell Grants drove up tuition at private schools as well as out-of-state tuition for public schools.

Earlier, Andrew Gillen, research director of the Center for College Affordability and Productivity, also reached the conclusion that federal financial aid fuels college tuition increases. In a colloquy on Gillen’s research, I concurred in this conclusion, while also noting that increased federal regulation has also fueled tuition increases—as have rules and red tape imposed by states and accreditation agencies. (A recent report by college presidents notes that under the Obama administration, the Education Department has flooded the nation’s schools with new rules that have never been properly vetted or codified, in violation of the Administrative Procedure Act.)

Education analyst Neal McCluskey of the Cato Institute cited four additional studies showing that increased government spending on student aid results in large tuition increases.

In 2011, Virginia Postrel wrote at Bloomberg News about how federal subsidies intended to make college more affordable have instead encouraged rapidly rising tuitions.

By subsidizing college, federal financial aid diverts young people away from vocational training that receives fewer subsidies but can lead to jobs with better pay and more value for America’s economy. In City Journal, Joel Kotkin described the increasing demand (and correspondingly attractive pay) for workers in manufacturing, who often need vocational training rather than college educations.

Yet states spend billions of dollars operating colleges that are little better than diploma mills in terms of academic rigor, yet manage to graduate few of their students—like Chicago State University, “which has just a 12.8 percent six-year graduation rate.” “Our colleges and universities are full to the brim with students who do not really belong there, who are unprepared for college and uninterested in breaking a mental sweat.” Nearly half of the nation’s undergraduates learn almost nothing in their first two years in college, found a 2011 study by experts like NYU’s Richard Arum, and 36 percent learned little even by graduation. Although education spending has mushroomed in recent years, students “spent 50% less time studying compared with students a few decades ago.” As George Leef of the Pope Center for Higher Education Policy noted, the National Assessment of Adult Literacy also indicates that degree holders are learning less.

Wastefully run colleges can now increase tuition even faster, at taxpayer expense, as a result of the Obama administration’s recent expansions of the Pay as You Earn program. The Pay as You Earn program limits borrowers’ monthly debt payments to 10 percent of their discretionary income. The balance of their loans is then forgiven after 20 years—or just 10 years, if the borrower works for the government or a nonprofit. It will cost taxpayers a lot, while doing nothing for most student borrowers (who will experience tuition increases as a result), and it will favor imprudent borrowers over prudent borrowers.

In February 2015, the Obama administration revealed that its expansion of this program will cost taxpayers more than $9 billion.

Most students chose inexpensive colleges or borrowed modestly, meaning “the average graduate’s debt level of $27,000” is no more than “the price of a car.” They will not choose to participate in this program, since they would pay more, rather than less, by paying ten percent of their income for years, which could add up to much more than $27,000 over a 20-year period.

But, imprudent borrowers who borrowed much more than that for useless majors will likely participate, since they will now be able to limit their payments to a fixed percentage of their discretionary income, and then have the unpaid balance remaining after 20 years (or just 10 years, if they go to work in the federal bureaucracy) written off at taxpayer expense, no matter how huge the unpaid balance is. The result is that they will pay the same amount over 20 years (or 10 years) no matter how much their high-priced college charged in tuition—eliminating any incentive for such colleges to keep costs under control, or to keep their tuition from escalating at a dramatic rate. Georgetown Law School gamed the Pay as You Earn Program to make taxpayers absorb the entire cost of educating of its left-leaning “public interest law” students, through creative accounting.

Another Illegal Rule from the Education Department


Recently, I wrote about a report to the Senate by a task force of college presidents, on how the Education Department is illegally dumping an avalanche of new rules and regulations on America’s schools, without even complying with the Administrative Procedure Act’s notice-and-comment requirements.

Yet another example of such mischief is the 2014 sexual harassment guidance issued by the Education Department’s Office for Civil Rights. That guidance radically expanded liability for harassment under Title IX from OCR’s past 1997 and 2001 harassment guidance, and deviated sharply from principles of harassment liability developed by the courts. And it imposed new obligations on colleges without any notice or opportunity to comment.

(The Administrative Procedure Act requires notice and comment before an agency imposes new obligations on regulated entities. In addition, the D.C. Circuit Court of Appeals’ Paralyzed Veterans decision also requires notice and comment for changes to many interpretive rules. The Education Department ignores these requirements.)

OCR’s 2014 harassment guidance generally imposes liability on institutions even if they correctly discipline those who engage in sexual harassment or sexual assault, if they do not also “prevent its recurrence” and “remedy its effects,” and it warns that even punishing the harasser “likely will not be sufficient” to comply with Title IX. See Office for Civil Rights, “Questions and Answers on Title IX and Sexual Violence“ (April 29, 2014), at pg. 25 (“imposing sanctions against the perpetrator, without additional remedies, likely will not be sufficient to eliminate the hostile environment and prevent recurrence as required by Title IX,” since the school must not just “end the sexual violence,” but also “eliminate the hostile environment, and prevent its recurrence”), and at pg. 1, Question A-2 (institution must “eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects”).

Such “remedies,” seemingly required of blameless and guilty schools alike, may include “monetary relief“ and counseling for victims, even though the Supreme Court’s Davis decision says that money damages cannot be imposed on schools under Title IX unless they cause a sexually hostile environment through their “deliberate indifference” to misconduct of which they have “actual notice,” and that schools are not liable for sexual harassment their own actions did not cause. See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). For example, Tufts recently agreed to provide “monetary compensation“ for a complainant to resolve a Title IX investigation: “Tufts signed an agreement with the government earlier this month, pledging to take a long list of steps in improving their policies, as well as providing monetary compensation to the student.”

By contrast, OCR’s 1997 guidance, modeled on federal workplace harassment precedent, required negligence by an institution for liability in cases of peer harassment, and a college or school district thus was not liable merely because harassment persisted despite reasonable attempts to stop it. The mere existence of harassment by students was not enough for liability under Title IX. More was required. The school’s own actions in response to the harassment had to be culpable. As the Education Department admitted in its 1997 “Sexual Harassment Guidance,” “Title IX does not make a school responsible for the actions of harassing students, but rather for its own discrimination in failing to remedy it once the school has notice.” (62 Fed. Reg. 12034 (1997).) Under this negligence standard, if an institution took action “reasonably calculated” to deter further harassment, it was not liable even if harassment unexpectedly recurred or persisted. See, e.g., Adler v. Wal-Mart, 164 F.3d 664 (10th Cir. 1998) (in which an appeals court ruled that an employer that disciplined most of the harassers, except one that it plausibly viewed as innocent, was not liable even though harassment unexpectedly recurred, because the employer was not negligent).

Under OCR’s 1997 guidance, as under federal court precedent, a college, like any institution, had no duty to compensate victims of peer sexual harassment merely because it occurred, or to automatically dispel any hostile environment or ensure against the recurrence of inappropriate behavior, given the prevalence of misbehavior among young people. As a Supreme Court ruling that cited that guidance (while limiting its reach a bit) observed, “Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. . . . in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it.” See Davis v. Monroe County Board of Education, 526 U.S. 629, 651-52 (1999).

And a school was only required to discipline harassers who were clearly guilty, meaning that there was no rigid requirement in terms of providing even that sort of “remedy.” See Swenson v. Potter, 271 F.3d 1184, 1196 (9th Cir. 2001) (appeals court ruling reversing jury verdict for plaintiff because harasser’s guilt was so murky that employer’s failure to discipline him was reasonable); Knabe v. Boury Corporation, 114 F.3d 407 (3rd Cir. 1997) (appeals court ruling affirming dismissal of lawsuit over harassment where employer refused to discipline alleged harasser due to lack of corroborating witness); Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000) (appeals court ruling finding no Title IX liability for failure to remove harasser based on belief he was innocent, even though harassment persisted).

The Supreme Court buttressed these limits on liability, and further limited Title IX liability, in its 1999 decision in Davis v. Monroe County Board of Education, 526 U.S. 629, 648-49 (1999), which noted both that a Title IX lawsuit must show “deliberate indifference” by the school, and also that Title IX itself doesn’t give complainants a “right” to second-guess a school’s reasonable decisions about discipline, since there isn’t any “Title IX right” to “particular remedial demands” or “particular disciplinary action,” just because harassment has occurred:

“We stress that our conclusion here . . . does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action. . . the dissent erroneously imagines that victims of peer harassment now have a Title IX right to make particular remedial demands . . .courts should refrain from second guessing the disciplinary decisions made by school administrators,” who “must merely respond to known peer harassment in a manner that is not clearly unreasonable.”

You can find the report I discussed above, which was issued by a task force set up by a bipartisan group of U.S. Senators, at this link. It is titled, “The Report of the Task Force on Federal Regulation of Higher Education: Recalibrating Regulation of Colleges and Universities.”

Obama Ed. Dept. Throws its Weight Around


A task force of college presidents has chronicled massive regulatory overreaching by the U.S. Department of Education, which, on a daily basis, floods the nation’s schools with new, uncodified agency requirements that have never even been vetted through the formal rule-making process. “The Report of the Task Force on Federal Regulation of Higher Education: Recalibrating Regulation of Colleges and Universities,” correctly notes that:

“According to the basic tenets of administrative law, Congress passes laws, and it is up to the agencies to implement them. However, in recent years, the Department has increasingly used the regulatory process not in response to any specific legislative change enacted by Congress, but rather as a means to achieve its own policy objectives.” (Pg. 35)

“The compliance problem is exacerbated by the sheer volume of mandates—approximately 2,000 pages of text—and the reality that the Department of Education issues official guidance to amend or clarify its rules at a rate of more than one document per work day. As a result, colleges and universities find themselves enmeshed in a jungle of red tape, facing rules that are often confusing and difficult to comply with.”

(Executive Summary, pg. 2).

The report, issued by a task force set up by a bipartisan group of U.S. Senators, cites examples such as a needlessly expensive distance-education regulation imposed on colleges without the notice and comment required by the Administrative Procedure Act. It carries an enormous price tag for schools that provide online learning, discouraging cheap and innovative forms of learning:

“A public institution with a well-established online program estimated the costs at nearly $800,000. One private institution has estimated that it will cost $290,000 and take up to 2,000 hours annually to deal with the changes. . . . In 2012, a federal appellate court upheld the original decision to vacate the regulation due to the Department’s failure to properly give notice of this issue in its pending notice of proposed rulemaking and provide stakeholders with a meaningful opportunity to comment on the policy.” (Pg. 24)

But this problem is not limited to higher education. The clearest example of the Education Department creating burdensome new legal obligations without even bothering to publish a formal regulation in the Code of Federal Regulations, or give schools advance notice and opportunity to comment on the proposed obligations, is in the K-12 context. It radically expands the reach of Title VI of the Civil Rights Act, a statute that bans racial discrimination in schools or colleges that receive federal funds or whose students receive federal financial aid.

The Education Department’s Office for Civil Rights has interpreted the Title VI statute as banning racially disparate impact (unintended racial disparities resulting from colorblind school rules) in school discipline, when the Supreme Court has ruled that the Title VI statute only bans intentional racial discrimination, not racially disparate impact.

The Supreme Court ruled in Alexander v. Sandoval, 532 U.S. 275 (2001) that disparate impact doesn’t violate Title VI, only “intentional” discrimination does. The Education Department claimed in that case that even if the Title VI statute itself doesn’t reach disparate impact, regulations under it can and do (an idea that the Supreme Court decision described as “strange” in footnote 6 of its opinion, but did not definitively reject).

Even if the Education Department’s claim is right, if it wishes to ban disparate impact in some area, it still has to adopt a formal regulation (in the Code of Federal Regulations) doing that, after notice and comment. It can’t just pretend the Title VI statute itself bans it, because the Supreme Court has said it doesn’t.

But that is what its January 2014 guidance does, interpreting the Title VI statute contrary to the Supreme Court’s ruling 13 years earlier, without even bothering to codify a regulation extending its reach. See January 8, 2014 “Dear Colleague Letter: Nondiscriminatory Administration of School Discipline,” available at this link.

The Education Department claims that the Title VI statute itself demands that schools eliminate colorblind disciplinary rules just because they have a “disparate impact”–i.e., if a higher percentage of blacks than whites are suspended, and the school cannot prove to bureaucrats’ satisfaction that the disciplinary rule is essential to maintain order. The Education Department’s January 2014 guidance to the nation’s schools insists that a school can be guilty under Title VI of the Civil Rights Act (for disparate impact) solely due to “neutral,” “evenhanded” application of discipline rules, just because more minority students violate such rules (see pp. 11-12 of the January 8, 2014 “Dear Colleague” Letter). It does not cite to any regulation in the Code of Federal Regulations for this school-discipline requirement, but to the Title VI statute itself (The government has adopted a number of formal disparate impact regulations under Title VI in other areas prior to 2001, but nothing in the area of school discipline).

For example, the Education Department states in its January 2014 guidance that even if the only reason a school punishes more black students for unauthorized “use of electronic devices” is because blacks actually “are engaging in the use of electronic devices at a higher rate than students of other races,” it can still be liable for disparate impact — under the Title VI statute itself.

But even if the Education Department can adopt disparate impact regulations extending the Title VI statute’s reach – something the Supreme Court sounded skeptical about in footnote 6 of its Alexander v. Sandoval ruling – that can’t justify it doing so outside the Administrative Procedure Act regulatory process, under the fiction, already rejected by the Supreme Court that the regulatory requirement is already part of the statute itself. (For more background, see this link, discussing how the Education Department’s rule also raises serious constitutional problems under People Who Care v. Rockford Bd. of Education (1997).)

A Slanted NPR Report Generates Bad Policy


Bad things can happen when an agency (like the Education Department) throws caution to the wind and regulates based on slanted media coverage from National Public Radio, rather than facts and evidence.

Checks and balances exist for a reason. When agencies impose new obligations on the institutions they regulate, they are supposed to first give the public notice of their proposed rule, and an opportunity to comment on it. This requirement, mandated by the Administrative Procedure Act, enables members of the public to point to legal or factual mistakes that may have precipitated the agency’s proposed rules.

But under the Obama administration, the Education Department has ignored these requirements. In “Dear Colleague” letters and “guidance” documents issued without any prior notice or comment, it has imposed on colleges a series of detailed, prescriptive, and controversial rules for responding to allegations of sexual harassment or assault—rules very much at odds with the deferential tenor of the Supreme Court’s Gebser and Davis decisions.

Those rules include procedures, time tables, and evidence rules that sharply contrast with those previously used by many colleges for all categories of offenses. This has pressured colleges to Continue reading A Slanted NPR Report Generates Bad Policy

Autistic Student Suspended for Mistaken Hug and Kiss

Brian Ferguson, a  20-year-old autistic student, has been suspended from special-needs classes at Navarro College in Texas for mistakenly hugging a woman he did not know and kissing her on the top of her head, according to the student’s mother, Staci Martin. She said, “And then they labeled it ‘sexual assault’ because of the kissing,” Martin said. “They said a kiss is considered an assault.”

This is an interesting potential case that illustrates how the ever-expanding definition of “sexual assault” on some college campuses apparently reaches well-meaning conduct that is not sexually-motivated at all and does not even involve intimate areas of the body, much less sex.  (It may also pit broad college policies designed to comply with the Obama administration’s interpretation of Title IX against broad duties to accommodate disabled students under the Rehabilitation Act and Americans with Disabilities Act).

This sort of application also is a logical argument against broad “affirmative consentrules that require advance permission for not just sex, but also ordinary touching and kissing, and classify any failure to obtain advance permission as “sexual assault” (even if it was not against the will of the complainant at the time it occurred).  “Affirmative consent” activists now want to extend such rules micromanaging commonplace interactions into the nation’s Kindergartens to cover even non-sexual contact.  Sexual assault policies and laws should protect people from violence and unwanted intimate invasions, not relatively harmless activities that simply lack advance authorization.

Note that the Obama administration’s interpretation of Title IX is itself invalid in certain respects. Draconian punishments of students can sometimes themselves violate Title IX or other laws. For example, if a college scapegoats an accused male student to appease Obama administration bureaucrats, that is not a legal defense to his lawsuit challenging his discipline, but may actually state a Title IX claim, as Judge Spiegel made clear in Wells v. Xavier University, 7 F. Supp. 3d 746 (S.D. Ohio 2014).

Students Must Agree “Why” They Had Sex or It’s Sexual Assault

At Ohio State University, to avoid being guilty of “sexual assault” or “sexual violence,” you and your partner now apparently have to agree on the reason WHY you are making out or having sex.  It’s not enough to agree to DO it, you have to agree on WHY: there has to be agreement “regarding the who, what, where, when, why, and how this sexual activity will take place.”

There used to be a joke that women need a reason to have sex, while men only need a place.  Does this policy reflect that juvenile mindset?  Such a requirement baffles some women in the real world: a female member of the U.S. Commission on Civil Rights told me, “I am still trying to wrap my mind around the idea of any two intimates in the world agreeing as to ‘why.’”

Continue reading Students Must Agree “Why” They Had Sex or It’s Sexual Assault

The Frenzy Over “Rape Culture” Grows


Scheming politicians, opportunists, and grifters have latched onto the recent panic over a supposed “rape culture” on college campuses to clamp down on activities having nothing to do with rape. In some cases, they have imposed regulations that take away student opportunities and harm small businesses.

Never mind that, as Wikipedia recently noted, there has been a steady decline in rape rates for all age groups over the last two decades, and data “from the U.S. Department of Justice’s Bureau of Justice Statistics” show a “58%” overall reduction from “1995 to 2010.” With enough fear, you can manufacture a crisis, and a crisis gives you “an opportunity to do things . . . you could not do before,” as President Obama’s former chief of staff noted in his famous remarks about not letting a crisis “go to waste.”

As the Cato Institute’s Walter Olson notes, small businesses have suffered from “Maryland’s grain alcohol ban,” passed in the name of preventing campus sexual assault, which has “tripped up violin restorers, cake pros,” and “craft bitters folk,” judging from a recent Washington Post story. For example, “violin makers in Maryland depend on 190-proof grain alcohol to create varnishes used in making and restoring their instruments. . .The craftsman dissolves the resin in Everclear because, with its high alcohol content, it dries resins quickly, so the already tedious process can be accomplished in a reasonable amount of time.” “There’s really nothing else that works,” said Silver Spring violin maker Howard Needham.

At Free State Notes, Olson discussed the spurious campus “‘sexual assault’rationale” that “is behind the new grain alcohol ban,” and how “tax dollars have enabled” the “crusades” against it that led to the ban. As Michelle Mintonnoted in the Baltimore Sun in July, “Maryland banned high-proof liquors like Everclear and other inexpensive tipples” after activists funded by taxpayers (and effectively rewarded for their alarmism) “claimed such ‘high octane’ liquors increased the likelihood of binge-drinking and sexual assaults on college campuses.”

Meanwhile, Columbia University has canceled a popular concert over sexual assault fears. “A popular, twice-a-year concert at Columbia University has been put out to pasture after administrators [worried] that the event was causing sexual assaults at the school. . .The abrupt cancellation will cost the school over $55,000 in payouts . . . to artists scheduled to attend. . . .There had been specific complaints about Bacchanal in the past, with a student penning an op-ed for the school newspaper last spring complaining about alleged sexual harassment that she experienced” at the concert.

The Obama administration has taken advantage of this climate of fear and panic to order colleges to drop longstanding procedural norms in campus disciplinary hearings (such as the clear-and-convincing evidence standard, which most Ivy League colleges used for disciplinary hearings of all types until 2011, when the Obama administration ordered them to use a lower standard for sexual harassment and assault cases. The administration also recently discouraged them from allowing cross-examination by accused students, even though the Supreme Court has described cross-examination as the “greatest legal engine ever invented for the discovery of truth.”).

Recently, politicians like Senator Claire McCaskill (D-MO) proposed a “Campus Accountability and Safety Act” that would menace due process by giving the Education Department’s Office for Rights a financial incentive to find colleges guilty of mishandling or misreporting sexual assaults (I discussed that bill here). As The College Fix notes, The Association of Public and Land-Grant Universities has also raised concerns about the provision:

“The association notes that the Department of Education would have a perverse incentive to punish universities: ‘The U.S. Department of Education would be responsible for pursuing cases against universities and the revenue from penalties would all go to the Department, which creates undue incentive and may invite a bounty mindset. Two separate provisions in the bill each call for non-compliance penalties of up to 1 percent of an institution’s operating budget. This means an institution could face penalties of up to 2 percent of its operating budget. There are additional financial penalties elsewhere as well.”

Rape is now, and always has been, a serious problem, but it is not a mushrooming “epidemic” that justifies violations of fundamental due process norms.

Troubling provision in Campus Sex-Safety Act

Liberty Unyielding

It is a conflict of interest — and sometimes a violation of the Constitution — for a fine to go to the very unit of government that employs the judge or official who imposed the fine. That gives the official an incentive to find the accused guilty in order to enrich the official’s agency. But such fines are apparently authorized by a provision of the Campus Accountability and Safety Act (CASA) (also known as H.R. 5354 and S. 2692).

CASA imposes penalties on colleges for violating regulations related to sexual violence. But a provision in the bill lets the money be kept by the agency imposing the fine, the Education Department’s Office for Civil Rights (OCR). That provision needs to be removed from the bill, because it will give OCR an incentive to find innocent colleges guilty of violations in order to keep the resulting fines, violating colleges’ due process rights. It will also strengthen OCR’s ability to pressure colleges and schools to adopt politically-correct policies unrelated to sexual violence.

This kind of conflict of interest can violate the Constitution’s due process clause when the resulting fines comprise a large fraction of the agency’s budget. In Ward v. Monroeville (1972) the Supreme Court ruled that because a “major part” of the Village of Monroeville’s finances came from fines imposed by mayor’s court, the defendant was denied due process, the right to a disinterested and impartial judge. Here, OCR can levy fines that equal one percent of a a college’s budget for “each violation or failure” — that would be a whopping $42 million for Harvard alone, since its budget is $4.2 billion.

Whether or not it violates the Constitution, this provision is a bad idea that will backfire. OCR is one of the most ardently left-wing federal agencies, as I can attest from having worked there. Moderates and conservatives in Congress should not enable left-wing empire building by OCR.

McCaskill Endorses Loopy Version of Sexual Consent

It’s not just the Obama administration VAWA Office that thinks all sexual contact or behavior without “explicit consent” is sexual assault.  So does Senator McCaskill (D-MO).

Later this summer, McCaskill is going to propose legislation that would further undermine due process on campus.

According to Senator McCaskill’s spokeswoman, she thinks that people (including, presumably, her constituents) are rapists if their consent to sex is not “explicit.” Many forms of consent to sex or intimate touching do not involve “express” consent in advance, and thus would be sexual assault under this definition.

This concept is not popular among the general public, i.e., voters, judging from criticism of the slightly less extreme California “affirmative consent” bill (which would arguably allow non-verbal consent) by both the liberal Los Angeles Times and the conservative Orange County Register.  It puzzles me that lawmakers support it, despite the seeming lack of a political upside (except perhaps within the Democratic primary electorate).

The White House VAWA blog, in a post by Bea Hanson, also endorsed this “explicit consent” standard .  It writes, “Sexual assault is not just limited to rape – it includes any type of sexual contact or behavior that occurs without explicit consent.”

According to The Maneater, the University of Missouri at Columbia’s student newspaper, McCaskill agrees. Her spokesman Sarah Feldman noted that McCaskill appreciated the White House’s recent PSA on sexual assault because it “gets the right message across,” namely,  “that unless there is explicit consent, it’s rape and there is no gray area.”

Obama Administration Attacks Cross-Examination and Due Process Rights in Campus Guidance

Cross-posted from Open Market Justice Brandeis once observed that “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.”

However well-meaning they may be, the Obama administration’s guidance and task force recommendations yesterday on campus sexual harassment and rape contain an insidious attack on cross-examination (as KC Johnson discussed at Minding the Campus.) As the Task Force Report notes (pg. 19), “this new guidance clarifies that: . . . the parties should not be allowed to personally cross-examine each other.” Similarly, the guidance itself says (pg. 31): “OCR strongly discourages a school from allowing the parties to personally question or cross-examine each other during a hearing on alleged sexual violence.” These attacks by the administration ignore the fact that the Supreme Court has lauded cross-examination as the “greatest legal engine ever invented for the discovery of truth.” (See Lilly v. Virginia, 527 U.S. 116, 124 (1999).) The new guidance will create serious legal problems for both public and private colleges, as I will explain in future commentaries.

As I explained over a year ago, the Education Department’s attack on cross-examination has no legal basis, especially since cross-examination is permitted all the time in sexual harassment cases in court, showing that cross-examination is entirely consistent with the civil-rights laws. While there is no independent constitutional right to cross-examine in campus disciplinary proceedings, the right has sometimes been protected by state education codes, collective bargaining agreements, or other contracts or regulations. Title IX does not require that these be disregarded, contrary to the Obama administration’s suggestions. Indeed, as the Supreme Court observed in its Davis decision, a school is entitled “to refrain from” disciplinary action that “would expose it to constitutional or statutory claims,” without risking Title IX liability. Moreover, in a few campus disciplinary cases, such as Donohue v. Baker (1997), judges have ruled that cross-examination was constitutionally required on due-process grounds to test the credibility of the accuser.

In addition to attacking cross-examination, the guidance would also violate due process by unfairly preventing a student from exonerating himself based on relevant “sexual history” evidence permitted by even the most complainant-protective rape-shield and sexual-harassment-shield statutes (like Federal Rule of Evidence 412(b)). Federal rules of evidence permit the introduction of physical evidence suggesting that “someone other than the defendant” was involved (in certain rape cases), and permit evidence in sexual harassment cases of the complainant’s “sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party,” such as whether the complainant earlier willingly engaged in a category of activity (such as sexual banter) that he or she later claimed to categorically hate engaging in. The Education Department’s new guidance flatly bans any questioning about “sexual history” with people other than the accused, which may or may not extend beyond physical sexual activity to things like verbal discussion of sexual fantasies, which could be highly relevant in some cases. On page 31, it says, “May the complainant’s sexual history be introduced at hearings? Answer: Questioning about the complainant’s sexual history with anyone other than the alleged perpetrator should not be permitted.”

The Obama administration’s guidance also overreaches in demanding (pg. 25) that “The school must use a preponderance-of-the-evidence . . . standard in any Title IX proceedings, including any fact-finding and hearings,” rather than a higher standard.

The Obama administration’s attack on cross-examination will undermine accuracy in campus disciplinary proceedings. The subjective component of the legal definition of sexual harassment means that there is no category of cases in which cross-examination is more useful or essential to ensure due process. To legally qualify as sexual harassment under Title IX, or racial harassment under Title VI, speech must be severe and pervasive enough to create a hostile learning environment for the listener, and interfere with the listener’s education, both in subjective and objective terms, according to court rulings like the Supreme Court’s 1999 Davis decision. Transitory offense is not enough. If the accuser admits on questioning that she did not really view the offensive speech as being a “big deal,” or was not shocked or surprised by it, that probably rules out the existence of a subjectively hostile environment. Indeed, a federal appeals court dismissed a racial harassment claim for just that reason in Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001).

But a wrongly-accused person may not be able to establish the absence of a subjectively-hostile atmosphere without questioning the accuser, and may not be able to show that the accuser wasn’t greatly impacted by the speech without cross-examining the accuser about its alleged effect on her and her studies, such as whether she continued to enjoy her college experience after overhearing the allegedly “harassing” remarks.

There is a fine line between protected speech about unpleasant sexual topics and unprotected sexual harassment, and it is crucial that accused people be able to prove that their speech did not amount to sexual harassment. Even sexually vulgar speech on political issues is protected on college campuses, as the Supreme Court’s Papish decision illustrates. And perfectly civil, non-vulgar students have been subjected to disciplinary proceedings for sexual and racial harassment, in violation of the First Amendment, merely for expressing commonplace opinions about sexual and racial issues, like criticizing feminism or affirmative action, or discussing the racial implications of the death penalty. (See the examples cited in the Amicus brief of Students for Individual Liberty, et al., in Davis v. Monroe County Board of Education, available at 1998 WL 847365.)

To adequately defend themselves against sexual harassment charges over speech on sexual topics that doesn’t really amount to sexual harassment, people who are wrongly accused of sexual harassment will sometimes need to cross-examine their accuser to show that their speech did not really have any sexually harassing effect, and thus did not legally amount to sexual harassment, despite their accuser’s attempt to make a mountain out of a molehill.

The Education Department’s attack on cross-examination will lead to free-speech violations, by resulting in students being convicted of harassment even when their speech did not create a subjectively-hostile environment, much less interfere with the accuser’s educational opportunities. If the speech has not created such an environment, it has not caused tangible harm, and cannot be banned merely because a hypothetical listener might have objected to it. For example, in Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995), the Oregon Supreme Court struck down a religious small-business owner’s fine for religious harassment because the state agency’s harassment rule violated religious-freedom guarantees. Justice Unis, in his concurrence, noted that the rule also violated free speech, and was unconstitutionally overbroad, because it only required that the speech create a hostile environment for a hypothetical reasonable person — not for the actual complainant, who did not need to experience a subjectively-hostile environment.

The Education Department also orders colleges to use the lowest standard of proof in disciplinary proceedings over alleged sexual harassment and rape, known as the preponderance standard. Historically, most colleges and universities used a higher, “clear and convincing” evidence standard in student and faculty discipline cases of all types, to safeguard due process. As James Picozzi noted in 1987 in the Yale Law Journal,”Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987); see also Nicholas Trott Long, The Standard of Proof in Student Disciplinary Cases, 12 J. College & U.L. 71 (1985).) Contrary to the Education Department’s claims, Title IX does not require a lower standard of evidence.

I earlier explained why the Education Department’s demand that colleges lower the standard of proof is legally erroneous, violates the Administrative Procedure Act, and is not required by Title IX at this link. I explained at a separate link why courts should not defer to the Education Department’s “guidance” on this subject due to its procedural and logical flaws.

The demand that colleges lower the standard of proof was originally made in a 2011 Education Department letter to school officials, known as the “Dear Colleague” letter. Its demands were criticized by many legal scholars, law professors, lawyers, civil-libertarians, and journalists, as well as groups like American Association of University Professors and the Foundation for Individual Rights in Education.

For examples of seemingly-innocent students expelled or suspended from school based on very weak evidence, in the aftermath of the Education Department’s “Dear Colleague” letter, seehere, here, here, here, here, here, and here.

The Anti-Bullying Assault on Free Speech

Cross-posted from Open Market

Earlier, we wrote about a Wisconsin town whose ordinance  holds parents liable for bullying by their children, including certain speech. We  and law professor  Eugene Volokh  noted that this raised serious First Amendment issues. Now, a New Jersey judge has done the same thing by judicial  construction, by allowing New Jersey school districts to  drag students and their parents into lawsuits brought against school districts by alleged victims of bullying or discriminatory harassment. (New Jersey’s anti-bullying law is so broad that it violates the First Amendment by banning non-violent speech, notes the civil-liberties group  Foundation for Individual Rights in Education.)


On March 12, a New Jersey Superior Court Judge  ruled  in  V.B. v. Flemington-Raritan Regional School District  that that school district, and the Hunterdon Central Regional High School, “could name 13 students and their parents as third-party defendants in a bullying suit,” dragging them into a lawsuit against the school districts, and potentially forcing them to share the massive cost of paying any damages awarded by a judge or jury against the school district. Judge Yolanda Ciccone allowed the parents to be sued based on conduct and offensive comments both in school (where teachers and schools officials, not parents, were in charge) and outside of school. She based this ruling partly on speech that is protected by the First Amendment outside the schoolhouse, such as unkind remarks on Facebook,   writing  that “Plaintiff’s complaint includes several allegations of that acts of bullying and harassment took place on Facebook, and that plaintiff had to contact Facebook directly to have to [sic] offending statements removed.”


Never mind that federal judges have ruled that the First Amendment applies with added force to students’ speech outside of school, meaning that vulgar speech that is banned in school may be protected speech when it occurs away from school, as cases like  Klein v. Smith  (1986) illustrate. Similarly, the federal appeals court in New Jersey has issued two First Amendment rulings in favor of students disciplined for creating fake web profiles lampooning their principals, holding that the speech was protected outside of school even if it would be unprotected in school, in Layshock v. Hermitage School District  (2010) and J.S. v.   Blue Mountain School District (2011).


The New Jersey state judge, by contrast, allowed  all  of these students and  their parents to be sued over the students’ alleged contribution to a “hostile learning environment,” including student K.I., who was sued even though “there were no allegations against him after the 2007-08 school year,” because other students harassed the plaintiff student for years thereafter, causing a hostile environment to develop for reasons largely unrelated to K.I. (The court did not merely cite offensive speech in allowing the bullying suit to go forward, but also cited obnoxious conduct totally unprotected by the First Amendment, such as a bully throwing things at the plaintiff. However, this does not make the First Amendment problem go away, because a damage award cannot be based  even in part  on protected speech, as the Supreme Court’s decisions in  Street v. New York  and  NAACP v. Claiborne Hardware Co.   make clear.)

Continue reading The Anti-Bullying Assault on Free Speech

Free Speech Includes Offensive Speech

Cross-posted from Open Market

“The Wandering Dago food truck wants to park and sell food at various events on New York State property. The state says no, because the name is offensive. Does that violate the First Amendment?” The answer is probably yes, says UCLA law professor Eugene Volokh at this link. He recently discussed the free-speech issue in a pending court case called Wandering Dago Inc. v. N.Y. State Office of General Services. The mere fact that a business’s name is politically incorrect, or offends some patrons, is not reason enough to ban it, as an appeals court ruled in holding the name “Sambo’s” protected in Sambo’s Restaurants Inc. v. City of Ann Arbor (1981). Of course, if it is offensive, the business may lose customers as a result, especially if its name does not appeal to patrons’ sense of humor.

Commercial speech is not the only speech that government officials seek to restrict when it offends certain listeners. Such restrictions are common in universities, even though the Supreme Court has indicated that free speech is nearly as broad on campus as in society at large (in its decisions in Papish v. University of Missouri Curators, Healy v. James, and Rosenberger v. University of Virginia).

For example, Arizona State University has expelled a fraternity for a racially offensive Martin Luther King Day party off campus. “Many condemned the students’ actions at the Tau Kappa Epsilon fraternity party, which included partygoers wearing stereotypical hip-hop clothes and posing with hollowed-out watermelon cups, according to photos posted on the Internet.” While offensive, this expressive conduct appears to be protected by the First Amendment, under court rulings such as Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993) , which overturned a university’s discipline of a fraternity for a racially and sexually offensive fraternity skit that the university claimed created a “hostile and distracting learning environment” for blacks and women.

As USA Today notes, “Gene Policinski, chief operating officer of the Newseum Institute in Washington, D.C.,” which operates the First Amendment Center, stated that “the Constitution protects the students’ right to dress in the manner they did as well as their offensive comments.”  Similarly, “Robert Shibley, senior vice president for the Foundation for Individual Rights in Education, said choosing a party theme is an expressive act, intended to communicate a message and is therefore protected by the Constitution.”

Moreover, the fraternity’s offensive expression did not appear to be aimed at minority students, much less any particular minority student, which undercuts any suggestion that the party was harassment not protected by the First Amendment. In 2010, the federal appeals court with jurisdiction over Arizona State quashed a racial harassment suit against a professor over his recurring racially-charged anti-immigration emails, citing the First Amendment and the fact that the emails were not targeted at any particular Hispanic complainant. (See Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010))

Moreover, if it occurred off campus, that also undermines any claim that the fraternity’s expression was racial harassment in violation of the federal statute banning racial discrimination in education (Title VI), even assuming that Title VI could somehow supersede the First Amendment, which courts have indicted it does not. (See UWM Post, Inc. v. Board of Regents, 774 F. Supp. 1163, 1177 (E.D. Wis. 1991)). Courts have generally held that even serious misconduct off campus, such as assaults, do not create a hostile learning environment on campus, even when the assault was committed by an agent of the university, like a professor (see, e.g., Lam v. Curators of University of Missouri, 122 F.3d 654 (8th Cir. 1997).

Obama Administration Demands Racial Quotas in School Discipline

Cross-posted from Open Market

Crime rates are not the same for different racial groups, and student misconduct rates aren’t, either.  The Supreme Court ruled many years ago that such racial disparities don’t prove racism or unconstitutional discrimination. But in guidance issued last week by the Justice and Education Departments, the Obama Administration signaled that it will hold school districts liable for such racial disparities under federal Title VI regulations.  (Title VI bans racial discrimination against students). In the long run, the only practical way for school districts to comply with this guidance is to tacitly adopt unconstitutional racial quotas in school discipline.  This will result in increased school violence, discrimination in discipline against white and Asian students, an increased racial achievement gap that harms black students, and more white flight from inner-city schools. It will also affect higher education, since Title VI disparate-impact rules apply to colleges and universities as well.

The administration made very clear that it viewed such racial disparities, which exist in virtually all school systems, as generally being the product of racism by school officials, not “more frequent or more serious misbehavior by students of color.”  Moreover, it also made clear that even if the school district proves itself innocent of racism, it will still be held liable for “racially disparate impact” – non-racist conduct that unintentionally has a discriminatory effect on a racial group, even though it treats individuals of all races alike – unless the school district shows that its discipline not only furthers an important educational purpose, but also does not lead to more suspensions of minorities than other (more ideologically-fashionable) methods of discipline that the government views as equally effective.

Administration officials like Attorney General Holder do not like harsh discipline of minority students, such as out-of-school suspensions or referrals to law enforcement, for things like “schoolyard fights” or “threats” to teachers that have not yet culminated in a physical attack.  But such suspensions are often necessary for learning and school safety: “in 2012 Senate testimony,” Cato Institute education researcher “Andrew Coulson pointed out that.  . . compared with the alternatives, the use of out-of-school suspensions appears to improve the learning environment for other (non-disciplined) students by protecting them from disruption.”  Liberal academics believe that schools should focus on trying to gently rehabilitate offenders through “reparative” or “restorative” methods, instead of using strict punishments like suspensions aimed at deterring such offenses from being committed in the first place.  But that excessive focus on rehabilitation is myopic: while “research shows that out of school suspensions do no good for the suspended student academically,” “they do appear to benefit the rest of the school, presumably by making it easier for teachers to teach the non-disruptive children.”

As a practical matter, the Obama Administration’s guidance defines virtually all of America’s school districts as being in violation of Title VI.  And it does so based partly on a disparate-impact theory of discrimination that the Supreme Court has questioned in the educational context, ruling that the Title VI statute itself does not ban race-neutral “disparate impact,” only intentional discrimination, and that students also cannot sue in federal court over disparate-impact, even if an agency adopts a Title VI regulation that bans “disparate impact,” because such a regulation seeks to fundamentally transform rather than implement Title VI’s ban on racial discrimination.

Fear of “disparate-impact” liability in recent years has driven school officials to adopt rigid, inflexible “zero-tolerance” policies, since draconian “discipline policies tend to yield smaller racial differences in  discipline rates than more lenient ones,” notes a lawyer and statistical expert.  Ironically, those zero-tolerance policies were criticized by the Administration in announcing its new school-discipline guidance.  But that guidance doubles down on the very “disparate impact” mandates that spawned that zero-tolerance excesses in the first place. As the Cato Insitute’s Walter Olson notes, “zero-tolerance policies were adopted in the first place in part as a defense for administrators against disparate-impact charges. In other words, the new supposed remedy (disparate-impact scrutiny) helped cause the disease to which it is being promoted as the cure.”

The Supreme Court ruled in United States v. Armstrong (1996) that there is no legal “presumption that people of all races commit all types of crimes” at the same rate, since that is “contradicted by” real world data.  For example, blacks, who are only 13% of America’s population, commit nearly half of all murders — four times the general rate.  Indeed, relying on that false presumption can lead to constitutional violations: A federal appeals court ruled in People Who Care v. Rockford Board of Education (1997) that schools cannot use racial caps or proportions in discipline, striking down a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline” as a veiled racial quota.

Yet, disturbingly, the Education Departments treats that false presumption as fact, and insists that there is no evidence of “more frequent” misbehavior by some groups (pg. 4), and that “research suggests that the substantial racial disparities of the kind reflected in the CRDC data are not explained by more frequent or more serious misbehavior by students of color.”

But as Heather Mac Donald of the Manhattan Institute has noted, black teenagers are 25 times as likely to get arrested in Chicago as whites, and the black homicide rate for teenagers is 10 times higher nationally than for whites.  As she noted in City Journal:

Nationally, “the homicide rate among males between the ages of 14 and 17 is nearly ten times higher for blacks than for whites and Hispanics combined.” In the Chicago schools, which used to be headed by Obama’s own current Education Secretary, “25 times more black Chicago students than white ones were arrested at school,” between September 2011 and February 2012.

This intransigent disregard for reality shows that the Education Department has an ingrained bias against school systems that have statistical disparities for reasons having nothing to do with racism and everything to do with sensible imposition of discipline on students who commit violence and make it hard for other students to learn.  School districts investigated for discrimination by the Education Department simply will not receive due process but rather will be presumed guilty.

Worse, the Education Department insists that a school can be deemed guilty (under the disparate-impact concept) solely due to its “neutral,” “evenhanded” application of discipline rules just because more minority students in fact commit such offenses, even when the school in fact proves that such misbehavior is in fact more frequent among certain groups.  It is not necessary to show that a black student was treated any differently than a white student for the school system to be deemed guilty in the Education Department’s eyes (see pp. 12, 71):

Examples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon any student who commits a specified offense . . . .

The administration of student discipline can result in unlawful discrimination based on race in two ways: . . . second, if a policy is neutral on its face – meaning that the policy itself does not mention race – and is administered in an evenhanded manner but has a disparate impact, i.e., a disproportionate and unjustified effect on students of a particular race.

For example, the Education Department wrote that even if a school district punished more black than white students for unauthorized “use of electronic devices,” but only because black students actually “are engaging in the use of electronic devices at a higher rate than students of other races” (pg. 18), the school district is still liable for discrimination under a disparate-impact theory if the punishment itself (evenly applied to both white and black offenders) was “excessive” relative to what the school district’s own guidelines indicated was proper.  Similarly, it wrote that a school could be liable for punishing students for an offense like tardiness if more students of one race than another were tardy, and the school district could have reduced the disproportionate impact on that race by remedying school district policies that made it harder for them to get to class on time (pg. 19).

Where racial imbalances result — even from student conduct, not school officials’ racism — the Education Department wrote that it will find the school liable if it believes that there are any “comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact.”  The Education Department is likely to claim that such alternatives exist even if they seem non-existent or utterly impractical to school officials, since the bureaucrats in its Office for Civil Rights, many of whom have seldom been in a classroom (as I can attest from having worked there), believe they know better that teachers how to run a classroom.  Elsewhere, the Education Department’s accompanying guidance lectures the nation’s school officials about the latest fads in “classroom management, conflict resolution and approaches to de-escalate classroom disruptions,” reflecting its belief that it knows better than teachers and principals do how to run a school and discipline students.

Never mind that the Education Department’s authority to even enforce disparate-impact rules is legally questionable.  It imposes its ban on “disparate impact” even though the Supreme Court ruled in Alexander v. Sandoval (2001) that such “disparate impact” doesn’t violate Title VI at all. (The Supreme Court ruled in the Sandoval case that people cannot sue institutions over “disparate impact” under Title VI.  The Obama Administration takes the position that while Title VI statute itself doesn’t reach disparate impact, Title VI regulations can and do.  The Sandoval decision said that people cannot cite those regulations to sue over “disparate impact” under Title VI. Federal appeals courts have also said that people cannot even invoke those disparate-impact regulations to sue under other laws, such as Section 1983, that more broadly allow people to sue over rights created by federal law, further clouding the legality of these disparate-impact regulations.

These guidelines reflect the mindset of left-wing civil-rights bureaucrats who have little understanding of how classrooms operate in the real world (and how disorderly and unsafe classrooms spawned by restrictions on discipline can destroy students’ ability to learn, prevent teachers from teaching, and drive teachers out of teaching).  They show little empathy for teachers and principals, and little concern for how difficult it will be for schools to comply with their impractical rules and red tape.  (When I worked in Washington headquarters of the Office for Civil Rights, one of the senior lawyers there boasted that every investigation for compliance with the bilingual education regulations she enforced, always found the school district out of compliance.  The important decision was which school district to investigate; once the investigation was launched, a finding of non-compliance with Title VI was a foregone conclusion.  The regulations she boasted about interpreted Title VI quite differently — and more onerously — than federal courts did.).

Reducing discipline for threats, fighting, and classroom disruptions will harm, not help, African-American, by increasing the racial achievement gap.  As University of Rochester professor Joshua Kinsler found, “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom. According to Kinsler’s findings, significantly cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”

Black students will suffer if school officials are prevented from adequately disciplining other black students, such as those who commit acts of violence, since violence is usually committed against other members of the perpetrator’s own race. Giving black students special treatment in discipline is an example of the “soft bigotry of low expectations” that undermines educational achievement among African-Americans.  Moreover, a loud and disorderly classroom environment, in addition to preventing learning, also prevents students from absorbing the lessons in politeness and courtesy that employers expect when they hire new employees. Employers require their employees to follow rules and get along with co-workers, not exhibit “defiance” towards superiors, traits instilled through school discipline.  Regulations that interfere with this deprive students of “equal access” to an essential educational “benefit,” namely, moral instruction and instruction in how to get along with others. See Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999)(civil rights laws forbid denying students access to an educational “benefit” based on their sex or race).

Racial disparities in suspension rates do not show discrimination. For example, the Supreme Court said that it is “completely unrealistic” to argue that minorities should be represented in each field or activity “in lockstep proportion to their representation in the local population.” (See Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989).)

Demanding that schools eliminate all racial disparities among groups will harm students by effectively forcing school officials to treat some accused students worse based on their race — exactly what the Title VI statute forbids.  A disparate-impact regulation cannot override the very statute it purports to implement.  (Title VI bans differential treatment based on race — even when the victim is white).

Writing in City Journal in Summer 2006, former educator Edmund Janko explained how informal pressure from bureaucrats to suspend students in numbers proportional to their race (what the Obama administration is now demanding) led him to engage in unfair racial discrimination against some white students:

More than 25 years ago, when I was dean of boys at a high school in northern Queens, we received a letter from a federal agency pointing out that we had suspended black students far out of proportion to their numbers in our student population. Though it carried no explicit or even implicit threats, the letter was enough to set the alarm bells ringing in all the first-floor administrative offices. . .

There never was a smoking-gun memo . . . but somehow we knew we had to get our numbers “right”–that is, we needed to suspend fewer minorities or haul more white folks into the dean’s office for our ultimate punishment.What this meant in practice was an unarticulated modification of our disciplinary standards. For example, obscenities directed at a teacher would mean, in cases involving minority students, a rebuke from the dean and a notation on the record or a letter home rather than a suspension. For cases in which white students had committed infractions, it meant zero tolerance. Unofficially, we began to enforce dual systems of justice. Inevitably, where the numbers ruled, some kids would wind up punished more severely than others for the same offense.

As Professor Joshua Dunn notes, Asian students may be particularly harmed by racial quotas in school discipline — even more than whites — since they are currently disciplined at lower rates than members of other races due to their committing fewer violations of disciplinary rules:

These guidelines will also encourage schools to unjustly punish students in races that have lower rates of punishment than their percentage of the student body.  If we accept the guideline’s assumption that disruptive behavior should be evenly distributed across racial groups, Asian students are woefully underpunished.  Under these guidelines a school would be well-advised to increase their punishments of Asian students whether or not they committed any infractions.

Creating de facto racial quotas in school discipline will also increase violence and disorder in the schools. At a widely-read education blog, a teacher describes the violence and disorder that occurred when her school adopted racial quotas in school discipline:

I was the homeroom teacher in an incident in a school that tried to implement just this criteria for discipline. One kid (scrawny 7th grader) had the {bleep} beaten out of him by a 6-foot, fully-muscled 7th grader – two different races. The little kid was suspended before his copious blood had been cleaned up off the floor. The big kid never did have ANY punishment – that particular ethnic group had been disciplined too many times.

Need I mention that it was a tough month, as word quickly spread that violence against the “under-disciplined” ethnic group was treated as a freebie?

By making urban schools even more violent, racial quotas in discipline are likely to increase de facto segregation in such schools, by driving out white, Asian, and black middle-class students, leaving behind a racially-isolated core of poor black students who cannot afford to either move to a better neighborhood or go to a private school.  As Professor Dunn observes, “the consequences for schools and particularly for minority students will be nothing short of disastrous if actually implemented.  The only conclusion that can be drawn from these guidelines is that the Obama administration does not care about actual student behavior and only wants to focus on disembodied percentages regardless of their destructive educational consequences.”

That the Obama administration’s guidance creates powerful incentives for just such quotas was confirmed by legal experts quoted in publications like the Washington Times:

“You have to make certain that your school discipline cases match those percentages. If you don’t, you’ll have the feds on your doorstep,” said Joshua Dunn, a political science professor at the University of Colorado and director of the university’s Center for Legal Studies. “If they actually do enforce these guidelines, there will be unintended consequences. This creates some rather destructive incentives. I don’t think there’s any way around that.”

Disclosure: I was once an attorney in the Education Department, in its Office for Civil Rights, which is responsible for the guidance discussed above.

More Harm from “Disparate Impact” Regulations

(Cross-posted from Open Market)

Earlier, we wrote about the Obama administration’s attempt to inject a race-conscious “disparate impact” provision into colorblind anti-discrimination laws like the Fair Housing Act, and how that could lead to risky, race-conscious lending, bad loans, and future bank failures, mortgage meltdowns, and financial crises. Now, Ohio University economics professor Richard Vedder highlights an additional area where disparate-impact rules may be having a negative impact: higher education. (“Disparate impact” is a term in anti-discrimination law for when a neutral policy happens to affect minorities more than whites. One example is a standardized test that whites pass at a higher rate than some minority group, even though test scores are calculated the same way for members of all races. Some civil-rights laws contain language authorizing “disparate-impact” claims, but others do not, and are phrased in colorblind terms.)

Vedder and others like George Leef of the Pope Center for Higher Education Policy believe the disparate-impact concept is fueling the college-tuition bubble and artificial competition for unnecessary paper credentials. At Minding the Campus, Vedder notes that disparate-impact regulations in the employment setting

have largely destroyed high-quality employer testing of job candidates. Four decades ago, in Griggs v. Duke Power, the Supreme Court outlawed testing that had a “disparate impact” on minorities. Such testing was an effective and inexpensive way of learning about the job potential of students and other job applicants. After Griggs, educational credentials became the dominant way of narrowing the pool of applicants for jobs. The problem, of course, is those credentials are hugely expensive to earn these days, so the information costs associated with hiring workers is astronomical.

Similarly, George Leef of the Pope Center for Higher Education Policy notes in The Wall Street Journal that the disparate-impact concept discourages inexpensive aptitude testing of job applicants by employers, resulting in the “move toward using” unnecessary and costly

college credentials as a screening mechanism for employers, a change largely due to the 1971 Supreme Court decision in Griggs v. Duke Power Co., which made aptitude testing a legal minefield for employers. It led to a strong movement toward offering the best-paying jobs only to people who had college degrees under their belts. That trend has continued and grown to the point where many entry-level jobs that ordinary high-school graduates could easily learn are open only to college graduates, even though nothing they studied in college has any relevance to the work. What appears to be increasing returns to college education is really the gradual elimination of most good career possibilities for anyone who doesn’t have a college degree.

In a longer commentary at this link, Leef describes how government regulations and subsidies helped spawn a looming student loan crisis and skyrocketing tuition.

Earlier, we described how the Obama administration is encouraging colleges to raise tuition at taxpayer expense, at this link, and at the expense of their students, at this link. Increasing numbers of students are now defaulting on student loans, and student loan debt now exceeds a trillion dollars.


Suing over Star Chamber Hearings


Recently, two male students sued colleges that expelled or suspended them over allegedly false claims of sexual misconduct. Citing school officials’ repeated violation of rules contained in student handbooks and college regulations, they argue that Vassar College and Saint Joseph’s University violated their contractual rights, Title IX (which bans sex discrimination), and anti-fraud laws.Their legal claims seem plausible to me, as a lawyer who once handled discrimination claims for a living, including a stint at the Education Department’s Office for Civil Rights.  But because they are male, their Title IX claims have been labeled as peculiar by feminist commentators.

Wendy Murphy, who had falsely branded the Duke Lacrosse players as rapists even after the case against them fell apart and their innocence became obvious, compared the male students’ lawsuits to claiming victim status based on “whiteness.”   Inside Higher Ed called the lawsuits “unusual,” citing critics arguing that “Title IX protects the victim,” not the alleged perpetrator, and is designed to protect women, who have “historically have been victimized,” rather than men.  Bloomberg Newsquoted a feminist academic who disparaged the Saint Joseph’s lawsuit as “odd” and presumed the student’s guilt as an “offender,” saying that “typically,” “it’s not the offender who’s suing under Title IX, it’s the . . . alleged victim.”

But there’s nothing peculiar about the idea that discrimination against male students is illegal.  Indeed, judges have repeatedly ruled that males can sue under Title IX and other federal laws when they are wrongly disciplined for sexual harassment based on their sex.  A 1982 Supreme Court decision ruled that Mississippi University for Women illegally denied a male student admission based on his sex.These lawsuits both appear to contain valid legal claims.  Take the lawsuit filed by Peter Yu, who is suing Vassar.  Yu was expelled in 2013 for a sexual encounter that occurred while he and his accuser were allegedly intoxicated.  According to his complaint, Yu was found guilty even though his accuser waited a year to accuse him of sexual assault, and there were numerous, cordial Facebook exchanges between him and the accuser during that year.  In doing so, Vassar essentially ignored messages between the accuser and Yu in which the accuser discussed the evening, apologized to Yu, and invited him to dinner. Vassar gave Yu almost no time to mount a defense: he was found guilty and expelled from the college two-and-a-half weeks after the complaint was filed.  Moreover, it denied him the right to an attorney, and limited his ability to introduce exculpatory evidence at the hearing.

Yu’s complaint plainly states a Title IX claim against Vassar.  Yu’s allegations against Vassar – that “males accused of sexual harassment at Vassar are ‘historically and systematically’ and ‘invariably found guilty, regardless of the evidence, or lack thereof”  — are precisely what an appeals court in 1994 found to be a sufficient basis for a Title IX lawsuit in another case involving Vassar, Yusuf v. Vassar College. As it noted then, “the allegation that males invariably lose when charged with sexual harassment at Vassar provides a verifiable” statistical sign of sex discrimination.

Similarly, that same court ruled in 2009 that a male plaintiff’s discrimination claim was strong enough to go to a jury where he was disciplined for sexual harassment based on a gender stereotype that presumed males have a propensity for harassment.  In its ruling in Sassaman v. Gamache, it emphasized that federal civil-rights law “requires that, in the course of investigating” sexual harassment claims, institutions “do not presume males to be ‘guilty until proven innocent’ based on invidious sex stereotypes.”

In the past, Vassar has virtually endorsed such a presumption of guilt, claiming that even false rape allegations  have beneficial consequences, such as greater rape awareness and “self-exploration” by accused males.  In 2001, a Vassar administrator argued that rape claims can have “value” even when they are inaccurate, and that the “pain” caused by false claims can be “good.”  As Time Magazine noted:

Catherine Comins, assistant dean of student life at Vassar, also sees some value in this loose use of “rape.” She says angry victims of various forms of sexual intimidation cry rape to regain their sense of power. “To use the word carefully would be to be careful for the sake of the violator, and the survivors don’t care a hoot about him.” Comins argues that men who are unjustly accused can sometimes gain from the experience. “They have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration. ‘How do I see women?’ ‘If I didn’t violate her, could I have?’ ‘Do I have the potential to do to her what they say I did?’ Those are good questions.”

A “de facto presumption” of guilt also is alleged in the other lawsuit, brought by Brian Harris against Saint Joseph’s University.  Harris was suspended, he says,  for consensual sex.  He was found guilty even though the accuser (via text message) invited Harris to her dorm room to spend the night, and implied in writing they’d have sexual intercourse. No medical evidence existed of a crime, nor were there any witnesses. (SJU counsels people to “always remember to . . .  believe” a rape claim rather than reacting with skepticism. “It is extremely important to believe a survivor by verbalizing your belief.”  Its brief urging the court to dismiss Harris’s lawsuit makes arguments that KC Johnson rightly calls “extraordinary.”

By allegedly violating college rules, procedures, and representations to students, Saint Joseph’s and Vassar subjected Yu and Harris to legalistic ambushes that interfered with their ability to submit evidence of innocence.  These violations plainly state a claim for relief under court rulings like McConnell v. LeMoyne College (2006), which make clear that “when a university has adopted a rule or guideline establishing the procedure to be followed in relation to suspension of expulsion, that procedure must be substantially observed.”

Unfair campus disciplinary proceedings that mistreat male students are disturbingly common.  (The Foundation for Individual Rights in Education notes that “campus sexual misconduct hearings increasingly lack fundamental fairness,” and Brett Sokolow, a consultant who advises schools on how to get rid of accused rapists, admits that “colleges now are expelling and suspending people they shouldn’t.”)

But lawsuits like those brought by Yu and Harris are nevertheless fairly infrequent.  Why? Money. Lawsuits by railroaded male students typically don’t generate a verdict big enough to  pay the lawyer’s bills, making it hard for students to find a lawyer unless they have a wealthy family.  (Courts only order the college to pay the student’s attorneys fees if the student proves discrimination, not just breach of contract).

For example, when a male student successfully sued the University of the South after being declared a rapist, which harmed his career prospects, he received only $26,500 in compensation.  That’s likely less than what his attorneys charged to bring the case.   (By contrast, when a minority student sued a school for racial harassment in the Zeno case, he got a million dollars, and the school had to pay his lawyers, too. ) Because lawsuits over them are not lucrative, violations of male college students’ rights usually go unremedied.

(Photo: Vassar College. Credit: Kirchhoff-Consigli.)

The Anti-Bullying Panic Makes it to College


Reposted from Open


We live in a culture where harsh but truthful
criticism, or exposure
of wrongdoing
, is viewed by some as “bullying,” especially when it affects
someone’s inflated “self-esteem.”


Some examples:        

  • DePaul University has punished
    a student for publicizing the names of fellow students who admitted vandalizing
    his organization’s pro-life display,” classifying his speech as “bullying.” The
    display had been approved by the university, and the 13 students who wrecked it
  • When historian Michael Bellesiless academic fraud was exposed
    fellow historians, resulting in his forced resignation,  a leading
    “anti-bullying” expert, who shared Bellesiles’ progressive political views,
    him a new job
    at her university, claiming
    that he “was the victim of a “mobbing”
    or group “bullying”
    by his fellow historians, who were distinguished people from across
    the political spectrum.
  • The Minister of Education in Ontario,
    the most populous Canadian province, has sought to

    define pro-life advocacy in religious schools as gender-based bullying

    Self-styled crusaders against “workplace bullying” want to impose broad
    definitions of bullying at the expense of free speech and use existing overly
    broad school bullying rules as models for laws against workplace bullying that
    would hold employers and co-workers liable for compensatory and punitive
    damages for speech and expressive conduct deemed to be bullying — something
    that disturbs groups such as
    Chamber of Commerce

Continue reading The Anti-Bullying Panic Makes it to College

Obama Bails Out the Students

Cross Posted From Open Market I’ve written before about perverse federal financial aid policies that encourage colleges to jack up tuition. Recently, the Obama administration came up with something even worse. It announced a new financial aid policy that will effectively bail out low-quality, high-tuition colleges and especially law schools at taxpayer expense, and encourage colleges and professional schools to increase tuition even more. These changes are the product of a revised income-based federal student loan repayment program that will go into effect starting December 21. The revised “Pay as You Earn” program will allow eligible student-loan borrowers to cap monthly payments at 10 percent of discretionary income, and have their federal student loans forgiven after 20 years — or just 10 years, if they go to work for the government. An earlier version of the program capped payments at 15 percent and offered forgiveness after 25 years. For students who foolishly attended third-rate but expensive colleges and law schools, this could wipe out part of their debt, at taxpayer expense, since their salaries in the low-paying jobs they end up with will be insufficient to pay off all of their massive debt in 20 years if they pay only 10 percent of their leftover income on repaying their student loans. Thus third-rate law schools stand to disproportionately benefit from this bailout. This taxpayer subsidy for low-tier low schools is especially unfortunate, because such law schools are in many respects economically harmful, and many law schools teach their students so few practical skills (as a few candid law professors have admitted) that students would be better off studying for the bar exam on their own, rather than attending such law schools. Alas, the option isn’t available. In the short run, this will primarily benefit those students. But in the long run, the primary beneficiaries will be low-quality but expensive colleges and law schools, which will be able to raise college tuition through the roof, since no matter how much debt their students run up in college, it will be written off after 20 years. That will eliminate market-based price discipline for those colleges, resulting in even more rapid increases in tuition. Of course the losers in this new arrangement will be American taxpayers, who will be on the hook for the unpaid balances. Recently, college loan debt passed credit card debt as the largest, non-mortgage, source of debt in the United States. If college students were willing to rack up this much debt under the assumption they would have to actually pay it back, imagine how much debt they will be willing to amass now that they realize they do not? As a result, expect college tuition increases to not only continue but to accelerate. Under the Obama administration’s new program, the federal government will write off most of these foolish law students’ loans, and they will not even have to repay what they are capable of paying, since their payments will be limited to less than 10 percent of their income. (By contrast, prudent students who attended cheaper or better law schools will not receive the same benefit, since their loan payments are generally already smaller compared to their incomes.) These law schools will respond by increasing tuition even faster, since the increased tuition will simply be paid by the American taxpayers when the borrowed tuition is later written off. Colleges have been able to increase tuition faster than inflation, year after year, secure in the knowledge that they can rake in ever-rising government subsidies and skyrocketing tuition. College students are learning less and less even as education spending has risen. Meanwhile, the Obama administration has de-emphasized the teaching of practical skills needed in manufacturing. Using faulty math, the Obama administration has given this costly income-based repayment program a ridiculously low price tag of just a few billion. Time will undoubtedly prove them wrong.

Another College Cost: Lower Birth Rate

Originally posted at Open



The Washington Times takes
of the burgeoning higher
education bubble
in a recent editorial:

cost of a college education has soared far in excess of the cost of health
care. This is in spite of — or, more accurately, because of — massive
government involvement in subsidizing and running schools. . . Doing more of
the same isn’t a realistic answer. America is in the midst of what University
of Tennessee Prof. Glenn Reynolds calls the “higher education bubble.” As with
the housing bubble, cheap credit is the primary culprit in inflating the price
of schooling. Federal student loans subsidized by taxpayers have made learning
more expensive, not more affordable.

Cato Institute’s Neal McCluskey estimates federal student aid increased by 372
percent between 1985 and 2010, from just under $30 billion to almost $140
billion. To put it another way, as Mr. McCluskey explains, “Taxpayer-funded
outlays per degree rose from $58,755 in 1985 to $78,347 in 2010.” This flow of
cheap money corresponded with rapid growth in tuition at rates well above
average inflation. Mr. Reynolds reports that college tuition grew at almost 7.5
percent annually between 1980 and 2010, when average inflation was 3.8 percent.
At less than 6 percent annually, even health care costs grew at a slower rate
than the university tab.

people aren’t getting much in exchange for this huge outlay. While enrollment
has increased, completion rates remain dismal. Barely a third of students
complete their degrees in four years, and less than 60 percent earn their
degree in six years, according to Mr. McCluskey. That means at least two out of
five enrollees don’t finish and fail to reap the benefits of a post-high-school
education. Even those who complete their programs of study and are fortunate
enough to find employment find that in one out of three cases, their degree
isn’t required for their work.

Continue reading Another College Cost: Lower Birth Rate

NYU Targeted over Gay Marriage


Cross-Posted from Open Market

New York
City Council Speaker Christine Quinn wants to kick
out of New York because its CEO, Dan Cathy, opposes gay
marriage. Accordingly, she informed
the head of New York University (which leases space to the one Chick-fil-A
restaurant in New York City) that “Chick-fil-A is not welcome in New York City
as long as the company’s president continues to uphold and promote his
discriminatory views […] I urge you to sever your relationship with the
Chick-fil-A establishment that exists on your campus.” 

My guess is
that the university will regard this letter more as an unstated threat than as
a mere statement of the Speaker’s opinion, since universities, vulnerable as
they are to ad hoc
government regulations and ordinances, are obligated to cultivate municipal
officials’ goodwill. As a rule, business owners are subject
municipal predation 
that can drive them out of business, and are thus forced them to ingratiate
themselves with city officials. Universities can end up with an enrollment
or lose lucrative
eminent domain
prerogatives if they annoy municipal higher-ups. 

Continue reading NYU Targeted over Gay Marriage

Why Harvard Law Took Elizabeth Warren

One of the pitfalls of race-based affirmative action is that many disadvantaged people are less able to take advantage of it than the legal and economic elite.

Harvard Law Professor Elizabeth Warren, a well-paid academic, claimed Native American status based on supposedly being 1/32 Cherokee. But the “white” plaintiff who unsuccessfully challenged the University of Washington Law School’s affirmative action policy, Katuria Smith, had much more Native American ancestry than Warren — she was 1/8 Native American. (A federal appeals court upheld the University of Washington’s affirmative action policy, rejecting Smith’s class-action lawsuit, despite the fact that its law school admitted it used racial preferences in admissions to favor black, Hispanic, and Native American applicants, giving a very large preference to black and Native American applicants. I was one of Smith’s lawyers in that case.)

Continue reading Why Harvard Law Took Elizabeth Warren