Tag Archives: civil rights

Transgender and the Transformation of Civil Rights

Although it seems as though the transgender tsunami has been howling forever, in fact it hit the shore of national fixation only four months ago, in March, when the North Carolina legislature passed, and Gov. Pat McCrory signed, House Bill 2, which restricted access to the state’s public sex-segregated restrooms by, well, sex, as defined by one’s birth certificate or evidence of sex reassignment surgery. (For those interested in bringing their vocabulary up to required code, SLATE helpfully points out that “[t]he increasingly preferred term is gender confirmation surgery.”)

A firestorm of controversy soon followed, and has shown no signs of abating. Four days after H.B.2 became law Lambda Legal, the ACLU, and Equality North Carolina filed a lawsuit against Governor McCrory, Attorney General Roy Cooper, and the University of North Carolina on behalf of a UNC-Chapel Hill staff member, a UNC-Greesboro student, and a North Carolina Central University law professor.

Shortly thereafter, the Dept. of Justice sent letters to Gov. McCrory and the University of North Carolina claiming that H.B.2 violated Title VII and Title IX of federal civil rights laws. A few days later, on May 13, the Departments of Justice and Education announced a “significant guidance” in the form of a “Dear Colleague” letter sent to all school districts in the country that dropped an administrative nuclear bomb — declaring, among other things, that “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”

Making that argument crystal clear, in announcing the federal lawsuit against North Carolina, Vanita Gupta, head of the Justice Department’s Civil Rights Division, declared: “Here are the facts.  Transgender men are men — they live, work and study as men.  Transgender women are women — they live, work and study as women.” Thus the federal government has declared it “facts” that transgender men and women do not simply live and work as, and identify with, the opposite sex; they “are” the opposite sex.

No longer limited to bathrooms, the new edict also covers athletic activities, locker rooms, dormitories from K-12 through universities. Next came the dueling lawsuits, with the United States (here) and North Carolina (here) filing complaints against each other. In addition to North Carolina, eleven states have filed a lawsuit claiming that the Obama administration’s position “has no basis in law.” Finally (at the moment), the Alliance Defending Freedom has filed a complaint defending H.B. 2 on behalf of North Carolinians for Privacy, an organization that includes both university and K-12 students.

Legal Issues

The Departments of Justice and Education of course must ensure that the nation’s schools and colleges comply with applicable anti-discrimination laws, but Yale law professor emeritus Peter Schuck calls their interpretation “novel” in a New York Times OpEd. Harvard law professor Jeannie Suk agrees, noting in a recent New Yorker article, the Obama administration’s interpretation of those laws is “new and surprising.”

Those of us who are not Ivy League law professors need not be so circumspect. The transgender ukases from Obama apparatchiks are breathtaking in their reach and scope — both in their attempt to promote a radical transformation of our society’s understanding of sex itself, and hence of our understanding of the nature of sex discrimination, as well as in their ignoring or rewriting inconvenient statutory law that is extreme even by the standards of this administration, which has time and again run roughshod over traditional separation of powers barriers.

As Gail Heriot, University of San Diego law professor and member of the U.S. Commission on Civil Rights, demonstrated in her May 16 testimony before the House Judiciary Committee, “It would be an understatement to say that the Transgender Guidance goes beyond what Title IX, which was passed in 1972, actually requires. If someone had said in 1972 that one day Title IX would be interpreted to force schools to allow anatomically intact boys who psychologically ‘identify’ as girls to use the girls’ locker room, he would have been greeted with hoots of laughter. OCR [the Dept. of Education’s Office of Civil Rights] is simply engaged in legislating.”

Heriot’s testimony was so coolly professional and compelling that it caused Rep. Zoe Lofgren (D, Ca) to throw what people of a certain age will recognize as a hissy fit, interrupting Heriot’s testimony and sputtering “I think you’re a bigot, lady, I think you’re an ignorant bigot.”

The problem, from the Obama administration’s point of view, is that Title IX prohibits discrimination “on the basis of sex,” but it also explicitly states that “recipients [of federal funds] may provide separate toilet, locker room, and shower facilities on the basis of sex.” Nowhere in Title IX or its implementing regulations are transgender, sexual orientation, gender, or gender identity mentioned. In fact, the problem for Obama’s social transformers is even more daunting, for not only are those terms not included in the civil rights statutes but they have been proposed year after year and Congress has specifically refused to include them.

The Employment Non-Discrimination Act (ENDA) was first introduced in 1994. Significantly, for well over a decade the versions that were introduced in each Congress, controlled at various times by both parties, added only sexual orientation to the list of categories protected from employment discrimination. Gender expression and even gender identity were purposefully excluded. Even so, it never passed.

After an increasing outcry from the transgender lobby those terms were finally added, but with a notable qualification. “Nothing in this Act,” declared Section 8(a)(3) of the proposed Employment Non-Discrimination Act of 2011, “shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable.” Section 8(a)(4) added that “Nothing in this Act shall be construed to require the construction of new or additional facilities.” The LGBT community,” a progressive publication mourned, “has ceded the ground on social conservatives’ and the religious right’s arguments of ‘men in dresses’ using women’s public restrooms.”

But not for long: By 2013 that qualification had been removed, but to no effect since ENDA has still never become law, leaving even sexual orientation unprotected by federal employment statute. And the blame (or credit) does not belong exclusively to social conservatives and the religious right, since protections for gender identity and expression are also resisted by Democrats. In 2014, The Advocate observed, even New York could not pass legislation protecting gender identity. In 2002 it passed a statewide bill protecting only sexual orientation, and “every year since 2003” legislation to protect gender identity and expression has failed.

So, since Title IX prohibits discrimination based only on sex, and Congress has repeatedly and pointedly refused to add even sexual orientation, much less gender identity and gender expression, to the categories protected from employment discrimination, how does the Department of Education justify its authority to require all schools and colleges to treat gender identity as sex? The short answer: poorly; the longer answer: the “pen and phone” overreach of ignoring law or making it up that we’ve come to expect from the Obama administration.

The new gender identity “guidance” the administration is attempting to impose on K-12 and higher education is based on the conclusion — arrived at, as Professors Suk and Schuck (both linked above) and the 11 state lawsuit have pointed out, without benefit of hearings or comment from the public as required by the Administrative Procedure Act— is that sex means gender and gender means gender identity.

Insofar as this extravagant and even revolutionary policy has any legal justification at all, it relies on an embellishment and extension of the analysis in a 1989 Supreme Court case, Price Waterhouse v. Hopkins. Ann Hopkins was denied a partnership because some partners found her personality and style aggressive and un-feminine. In order to improve her chances for partnership, she was told, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Noting that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes,” the Court held “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

It is one thing to say that sex stereotyping can lead to sex discrimination when women are penalized for behavior that is rewarded in men. But it is quite a reach to claim that gender, divorced altogether from biology, is sex, that gender is determined entirely by subjective feelings, and hence that anatomical men who “identify” as women must be allowed to use women’s bathrooms and locker rooms and play on women’s athletic teams. No chasm, however, is too wide for progressive regulators to leap in their relentless pursuit of social transformation.

Even Obama may be ambivalent about the bathroom policy his minions are seeking to impose. On a PBS Town Hall a few weeks ago he sounded a bit dodgy, explaining that “Somehow people think I made it an issue. I didn’t make it an issue. “I just want to emphasize to you,” he added, “it is not like I woke up one day and said, ‘Man, what we really need to do is start working on high school bathrooms.’”

He did not have to say it, because he had staffed his administration with individuals whom he knew were determined to transform society’s sexual attitudes and practices. Take former Georgetown law professor Chai Feldblum (please!), whom Obama appointed to the EEOC in 2009 and who has described herself as “part of an inner group of public-intellectual movement leaders committed to advancing LGBT [lesbian, gay, bisexual, transsexual] equality in this country.” As I noted here shortly after her appointment, Feldblum had acknowledged that she wants “to revolutionize societal norms” regarding sex and gender. In order to gain approval, however, she did distance herself from some of her earlier positions, such as calling for the legal recognition of “committed, loving households in which there is more than one conjugal partner” and “queer couples who decide to jointly create and raise a child with another queer person or couple, in two households.”

With Feldblum on board, the Obama-staffed EEOC quickly set off down the path that would lead to sex being determined by subjective gender identity. In a 2010 case it acknowledged that although “Title VII’s prohibition of discrimination does not include sexual preference or orientation as a basis,” but, citing Hopkins v. Price Waterhouse, it nevertheless held that “Title VII does, however, prohibit sex stereotyping discrimination.” The complainant, a male (perhaps I should say a non-transgender male, since he was a male who “identified” as a male) “essentially argued,” according to the EEOC’s ruling, that a harassing co-worker “was motivated by the sexual stereotype that marrying a woman is an essential part of being a man, and became enraged when complainant did not adhere to this stereotype by announcing his marriage to a man in the society pages of the local newspaper.”

Similarly, in a 2011 case, the EEOC held that an ironworker could collect damages for harassment because his “supervisor harassed him because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical ‘rough ironworker.’”

In a 2012 case, also citing Hopkins v. Price Waterhouse, the EEOC extended its sex stereotyping rulings to transgender, finding “that the Complainant’s complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.”

The problem the Obamanauts faced here is that, simply as a matter of fact, one’s “sexual orientation” is not the same as one’s “sex,” and the law the EEOC was obligated to enforced did not prohibit — and Congress has repeatedly refused to amend it to prohibit — discrimination based on sexual orientation. Faced with an inability to rely on either the facts or the law, the EEOC simply declared that discrimination based on sexual stereotypes was really discrimination based on sex, and hence illegal, an assertion Roger Clegg convincingly demolished several years ago in testimony before the U.S. Commission on Civil Rights. “I would be curious to know,” Clegg asked, “if the administration officials could describe the situations in which they would not view discrimination on the basis of sexual orientation as also discrimination on the basis of sexual stereotypes that is, they think, therefore illegal.”

The concept of sexual stereotypes, in short, simply cannot serve to bring transgender issues under the protection of the prohibition of discrimination based on sex. To see why, consider if Ann Hopkins, the Price Waterhouse plaintiff, had instead been Al Hopkins, a transgender male turned down for promotion because of inappropriately dressing and acting like a man. The Obama administration argument is that this rejection of the hypothetical Mr. Hopkins is a form of sex discrimination, but exactly what or where are the “sex” and the “sexual stereotype”?

How could Hypothetical Hopkins have been discriminated against as a man acting like a man? Presumably the claim would be that he was not treated the same as other similarly situated men because he was still regarded, falsely, as a woman and thus violating the “stereotype” that women cannot be men. But that view is a “stereotype” only insofar as it is true that “gender identity” itself, absent surgical or pharmacological intervention, can displace “sex.” By what authority are the Obamanauts in the Departments of Justice, Education, and Labor authorized to make that determination?

The only alternative would be to claim that the hypothetical Mr. Hopkins was in fact still a woman, and thus, like the actual Ann Hopkins, a victim of discrimination for not acting the way women are supposed to act. But that argument became unavailable once the government issued its fiat that for the purpose of anti-discrimination law one’s “gender identity” is one’s “sex.”

The EEOC’s solution to confronting this conceptual muddle and obstinate law was classic, typical Obama: “construe” the law so that it conformed to their own agenda, and then proceed to claim, quoting their prior transgressions, that their preferred policies are settled law.

Thus we have a letter in the New York Times a few weeks ago by — who else? — EEOC Commissioner Chai Feldblum responding to Peter Schuck’s criticism of “the administration’s novel reading of the law” in its bathroom guidance. Her argument? Nothing novel here: “for the last four years, the Equal Employment Opportunity Commission has processed hundreds of complaints from transgender employees and applicants based on the commission’s legal ruling in 2012 that sex discrimination law prohibits discrimination against transgender people.” This amounts to adverse possession (if you trespass long enough, it’s not trespass) coming to civil rights law: if a regulatory agency unilaterally asserts some radical new reading of the law long enough, it becomes law.

Equally revealing, and even more extreme, is OCR Director Catherine Lhamon’s explanation of why the new transgender bathroom edict required no prior notice and public comment. It is not new law but merely states her agency’s interpretation of existing law. As The College Fix pointed out, “Lhamon’s explanation seems to be that Title IX’s original formulation in 1975 went through notice-and-comment, so any further OCR interpretation” — no matter how “novel” (Schuck), “new and surprising” (Suk), or just plain far-fetched — “needs no follow up opportunity for colleges and the public to weigh in” … and, courts must defer to the agency’s interpretation.

But if the administration’s view that discrimination on the basis of sexual orientation and even gender identity had been prohibited since the initial passage of Title IX, or at least ever since Hopkins included sexual stereotypes, then there was never any need for ENDA, and the years struggling to enact it were a waste of time.

Obama’s Justice Dept., EEOC, and Dept. of Education (via its Office of Civil Rights), has in fact been issuing actual or de-facto rulings that are not authorized by the law they are supposed to enforce. So far Congress has done nothing to stop them, but the trouble with revolutionaries is that their reach often exceeds their grasp, causing the pendulum of popular and even legal opinion to swing back directly at them. In her Congressional testimony, quoted above, Gail Heriot demonstrates that there are some limits, known generally as the non-delegation doctrine, whose revival she urges. Her fundamental complaint is that the recent bathroom edict is simply the latest example of a disturbing trend: “OCR routinely issues guidance that that are untethered to any plausible violation of Title VI or Title IX or to any rule lawfully promulgated pursuant to those statutes,” a charge that she supports with chapter and verse examples and with recommendations about what can be done to reign in the out of control agencies.

A Grimm Fairy Tale?

And it’s not just Congress that may be forced by the administration’s bathroom bullying to reconsider the extreme deference provided to regulatory agencies’ interpretations of their own powers. Writing on the National Constitution Center’s Constitutional Daily blog, respected Supreme Court analyst Lyle Deniston argues that a transgender case the Gloucester County, Virginia, school board is appealing to the Supreme Court could provide a strong challenge to the deference (known as Auer deference) courts have traditionally given to regulatory agencies.

A three-judge panel of the Fourth Circuit Court of Appeals recently ruled 2-1 that a transgender student, Gavin Grimm, who was born a female but identifies as a male, can sue his school board to gain access to the boys’ bathroom. In its statement of intent to file a Supreme Court appeal the school board charges that DOE and DOJ have sought to do “what Congress has not done — replace the term ‘sex’ with ‘gender identity’ in order to support an outcome unilaterally desired by the Executive Branch. This raises substantial questions concerning both federalism and the separation of powers” as well as “the individual’s right to bodily privacy.”

If the Dept. of Education had paused to listen to public comment, it would no doubt have been asked to explain how its new theory of what Title IX requires can co-exist with Title IX’s clear and undisputed text allowing schools and colleges to maintain “separate toilet, locker room, and shower facilities on the basis of sex.” The “Dear Colleague” letter from the Departments of Justice and Education to the nation’s schools and colleges states that “A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity.”

Here is the square peg / round hole problem entailed by treating gender as sex: Can that school prohibit a transgender student from using facilities that correspond to his or her sex at birth? Does OCR, in short, believe that Grimm, whose biological sex was and still is female, can legally be excluded from the girls’ bathrooms?

If so, that means that “gender identity” always trumps biological sex, with the result that in its zeal to create new transgender rights OCR has in effect obliterated sex as a meaningful category, making the recognition of sex-segregated facilities of any kind non-sensical. If not, that would mean that transgender students are afforded special rights: they could choose which bathroom to attend, while non-transgender students would be limited to the one that corresponds to their sex.

There is another, even more troubling aspect to what the Grimm story reveals about intrusive government overreach. It is the government’s position that even very young students are entitled to determine their own “gender identity,” sometimes even without the involvement of their parents. Thus Examples of Policies and Emerging Practices for Supporting Transgender Students the Dept. of Education recently distributed endorsed the policy of the District of Columbia Public Schools “noting that ‘students may choose to have their parents participate in the transition process, but parental participation is not required.’” That document also endorses a similar policy in Massachusetts that notes “Some transgender and gender nonconforming students are not openly so at home for reasons such as safety concerns or lack of acceptance. School personnel should speak with the student first before discussing a student’s gender nonconformity or transgender status with the student’s parent or guardian.”

As noted in the Fourth Circuit opinion, Gavin Grimm is now a sixteen-year old high school junior. Mrs. Grimm first presented the school board with their demands in August 2014, when Gavin was 15. Thus the Obama administration is arguing that even young — sometimes very young — students can determine their own “gender identity,” and hence “sex” for Title IX purposes, even though they have not even reached — some by many years — the age of consent to have sex anywhere in the United States. (The age of consent ranges from 16 to 18 across the country; in Virginia it is 18.)

(Tomorrow: transgenderism’s impact on school sports, dorms and feminism.)

 

Summer Reading for Freshmen: Unchallenging, Mediocre

“Beach Books 2014-2016,” released yesterday by the National Association of Scholars (NAS), is a study of mostly summer reading assigned by colleges and universities to their incoming freshman.

NAS reports:

Our study of common readings during the academic years 2014-2015 and 2015-2016 covers 377 assignments at 366 colleges and universities for the first year and 361 assignments at 350 colleges and universities for the second year. Our data includes common readings for every college and university we could find—including readings for honor colleges, but not for sub-units of the university such as departments of education. We included books assigned as summer readings, whether to freshmen or to all students.

Although in the past we did not include books tied to readings assigned in a core curriculum, this year we have included Columbia University’s assignment of an English translation of the first six books of Homer’s The Iliad to its incoming undergraduate class, since it is specifically designated as a summer reading.68 Columbia’s decision does make The Iliad the common reading for its incoming class, and this wonderful effect should not be removed from our charts simply because it is not formally labeled as a Common Reading. We hope that Columbia’s choice will prove a model to its peers.

Download the report (pdf): Beach Books 2014-2016: What Do Colleges and Universities Want Students to Read Outside Class?

The findings, in brief, follow.

College common reading programs are:

Meant to Build Community. Colleges see their common readings more as exercises in community-building than as means to prepare students for academic life.

Civically Engaged: Common readings are overwhelmingly chosen to foster civic engagement; they scarcely mention the complementary and equally valuable virtues of the disengaged life of the mind. They give no sense of why or how college differs from the world outside, and why those differences are valuable.

Recent: More than half of common reading assignments (58% in 2014, 60% in 2015) were published between 2010 and the present. Only 12 assignments out of 738 (1.6%) were published before 1900, and another 5 (0.7%) between 1900 and 1945.

Nonfiction: 71% of assignments in 2014 and 75% of assignments in 2015 were memoirs, biographies, essays, and other non-fiction.

Dominated by mediocre new books: Most common readings are recent, trendy, and intellectually unchallenging.

A Narrow, Predictable Genre: The common reading genre is parochial, contemporary, commercial, optimistic, juvenile, and obsessed with suffering.

Almost No Classics: Only a scattering of colleges assigned works that could be considered classics. With few exceptions, the hundreds of common reading programs across the country ignored books of lasting merit.

No Modern Classics: Even in confining themselves to living authors, common reading programs neglect some of the best ones, such as Martin Amis, Wendell Berry, J. M. Coetzee, Annie Dillard, Alice Munro, V. S. Naipaul, Philip Roth, Wole Soyinka, and Tom Wolfe.

Author Speaking: In 2014, 53% of colleges with common reading programs hosted personal appearances by the authors, and in 2015, 54% of colleges with common reading programs had author appearances.

Nothing Foreign: Classics in translation were nearly absent—and so was anything modern in translation. Even common readings about foreigners generally were written in English, not translated from a foreign language.

Predominantly Progressive. The assigned books frequently emphasize progressive political themes—illegal immigrants contribute positively to America, the natural environment must be saved immediately—and almost never possess subject matter disfavored by progressives.

The desire to appeal to incoming students who have rarely if ever read an adult book on their own also leads selection committees to choose low-grade “accessible” works. Common reading programs aim to familiarize new students with how college students think, read, discuss, and write. They are meant to establish academic standards—and to establish a sense of community among students, both with other students and with the faculty. How well they do either of these things is open to question. Common reading programs are also meant to inculcate institutional identity and institutional goals—under which cover progressive tenets such as diversity and sustainability often creep in.

Books are selected to appeal to as broad an audience as possible, both to satisfy the varieties of student taste and disciplinary interest and so as to get as broad an institutional “buy-in” as possible from the administration and the faculty. The basic rationale, however, is that if students can be brought to care enough about a book to read it, and even think it’s interesting enough to talk about with their friends, they might also care enough about college to make a real go at their education.

Common reading programs state their goals with words that make a leftward skew in the book selections just about a sure thing. Keywords telegraph the content of those goals: all save academic expectations are the euphemistic jargon of the left.

For instance, Salem State University (Massachusetts) desires “thoughtful discussion of ideas”; in 2015, it chose Joshua Davis’ soft sell for amnestying illegal immigrants, Spare Parts: Four Undocumented Teenagers, One Ugly Robot, and the Battle for the American Dream (2014).  These basic programmatic goals have been elaborated by a constellation of other words and phrases that largely partakes of progressive jargon as well: active citizenship, awareness, biodiversity, civic engagement, community service, critical thinking, diversity, engaged, equity, ethics, inclusion, injustice, intercultural understanding, local talent, meaningful, multiple disciplinary application, perspectives, powerful, readability, relevant, responsibility, sensitivity, shared experience, social justice, social responsibility, timely, and tolerance.

(Critical thinking, ethics, and tolerance are not monopolies of any political party, and they should be part of a college education. What we note and critique here is the use of this hijacked vocabulary to forward progressive political projects.)

These programmatic keywords reinforce other skews. The calls for civic engagement, community service, relevance, and responsibility filter out books concerned with the disinterested life of the mind. The demand for a reading that is about something in the world leads to endless memoirs and works of popular nonfiction concerned with life beyond the college walls. Even a memoir such as Liz Murray’s Breaking Night: A Memoir of Forgiveness, Survival, and My Journey from Homeless to Harvard, whose point is the value of going to college, is entirely about the struggle to get to Harvard, and not the character of her life once she has arrived.

Common reading choices continue to reflect the issues of the day. The sharp rise of selections on African American themes in 2015-16 coincides with the Ferguson protests and the ensuing Black Lives Matter campaign; and it is doubtful that, absent Ferguson, Augustana College (Illinois), Hampshire College (Massachusetts), and Norfolk State University (Virginia) all would have decided in 2015 to assign James Baldwin’s The Fire Next Time.

The campaign to amnesty illegal immigrants likewise has produced a sharp uptick of books on themes of immigration, particularly illegal immigration. The popularity of Sonia Nazario’s Enrique’s Journey: The Story of a Boy’s Dangerous Odyssey to Reunite with His Mother (6 selections in 201415 and 5 in 2015-16) evidently derives from this campaign. The rise of the transgender movement, with its insistence on contingent sexuality, probably inspired a faint echo in Bluffton University’s (Ohio) choice of Marge Piercy’s He, She, and It, a 1991 novel on a woman who falls in love with a cyborg.

The common readings are homogeneous and bland. The desire to appeal to incoming students who have rarely if ever read an adult book on their own also leads selection committees to choose low-grade “accessible” works that are presumed to appeal to “book virgins.” Since common reading programs are generally either voluntary or mandatory without an enforcement mechanism, such “book virgins” have to be wooed with simple, unchallenging works.

A significant number of books are chosen by the academy’s diversity offices. The sustainability programs are not yet institutional sponsors of common readings, but their influence can be seen in the uptick of sustainability themes for common reading programs. The University

of Tennessee’s student-led fossil fuel divestment campaign began in January 2013,9 but surged in popularity after incoming students read the 201314 common reading, Bill McKibben’s Eaarth: Making a Life on a Tough New Planet, and heard McKibben speak on campus.10

Wes Moore’s The Other Wes Moore: One Name, Two Fates (2010) is by far the most frequently assigned book of the last two years, with 17 assignments in 2014-15 and 16 in 2015-16. This is a memoir of the contrasting fates of two Wes Moores— both born African American and poor in Baltimore, one grew up to be a Rhodes Scholar, decorated veteran, White House Fellow, and business leader, while the other ended up a convicted murderer serving a life sentence.

The most common college selections were in these categories: civil rights/racism/slavery, crime and punishment, drugs and poverty, family dysfunction and immigration.

More About what Candidates Can Do…

By Roger Clegg

Kudos to Peter Wood for encouraging the presidential candidates to opine – and opine wisely – on higher education issues in his article, “What Candidates Can Do for Higher Education Now.” With regard to his Item #3 (“End higher education’s destructive focus on race”), I’d like to point out two specific proposals that have been made, along the lines of the legislation that Peter discusses.

First, Professor Gail Heriot, who moonlights as a member of the U.S. Commission on Civil Rights, had an excellent Wall Street Journal op-ed last year that made two important points. The first is that the “mismatch” that results from racial preferences in university admissions is an important factor in the relative dearth of African American graduates in the STEM disciplines.

But the second is that, while some of the pressure to use these preferences is self-imposed, a lot of it is not — and, in particular, much of it comes from accrediting agencies. She calls on Congress to step up to the plate and “prohibit accreditors from wading into student-body diversity issues.” Those interested in more information about what Congress should do on this can read Professor Heriot’s additional words of wisdom here and here.

Second, as long as university officials take race and ethnicity into account in admissions decisions, a bill requiring publication of the use of such preferences is necessary. Such a bill would require universities that receive federal funding to report annually and in detail on whether and how race, color, and national origin factor into the student admissions process. The Supreme Court has, alas, upheld such discrimination as constitutionally permissible, at least for now, but this is supposedly subject to numerous restrictions.

So even if some insist that taxpayer-funded universities should continue to practice racial discrimination in admissions, there’s no justification for it being done secretly and illegally – that is, without public disclosure and without taking pains to satisfy the Supreme Court’s requirements.

Senator Lamar Alexander (R-TN), who chairs the relevant Senate committee and is an outspoken critic of racial preferences, ought to be supportive; so should his House counterpart, Rep. Virginia Foxx (R-NC); the U.S. Commission on Civil Rights endorsed this approach, including “sunshine” legislation, as a recommendation to the President and Congress in a 2006 report. And Rep. Steve King (R–IA) has on more than one occasion introduced legislation like this. You can find a draft of the bill (the “Racial and Ethnic Preferences Disclosure Act of 2014″) and more discussion here.


Roger Clegg is the President and General Counsel of the Center for Equal Opportunity.

Two Lawmakers Vote No to Safe Campus Act

A good rule of thumb when considering campus due process matters: If the Senate’s two most ardent foes of campus civil liberties, Kirsten Gillibrand and Claire McCaskill oppose something, the measure is probably worth a good look. The Safe Campus Act, which recently received criticism from the two senators, deserves more than a look.

It seeks to overturn the Office for Civil Rights mandate that colleges use the preponderance of evidence standard. It also says that while colleges can accommodate sexual assault accusers in any way desired (changing a class schedule, providing counseling, offering extensions on work), schools cannot initiate disciplinary proceedings unless the accusers report the allegation to police. The effect of the provision: ensuring that a student accused of sexual assault is judged on basis of evidence compiled by professionals rather than a campus Title IX bureaucracy,

Related: The Rape Epidemic on Campus Does Not Exis

Given their record on the issue, it’s no surprise that McCaskill and Gillibrand oppose the measure. Their arguments for doing so, however, are remarkable. Here’s McCaskill, in a quote that appeared in both Slate and Huffington Post: “You have this anomaly they’re proposing, where a young woman could be robbed at gunpoint and decide that she wanted to just try to get that person off campus and go to her university and they could take action under Title IX. But if she was raped, she would not be able to do that unless she made the decision to go to the police.”

This statement is strange. Does McCaskill—a former prosecutor—actually believe it would be a good idea for armed robberies to be adjudicated by the campus system? And could she really believe that victims of armed robberies could take action under Title IX? Even OCR has never described armed robbery as a crime that schools must adjudicate under Title IX.

More to the point, does McCaskill believe that student victims of armed robberies are currently being adjudicated through the campus disciplinary process? This is a bit like OCR head Catherine Lhamon’s recent, absurd claim by that campus’s tribunals’ deal with “drug dealing” cases. Imagine the resident Title IX investigator needing to jet off to Mexico to investigate the drug lords supplying her campus.

Related: Suing Over Star Chamber Hearings 

It seems that some foes of The Safe Campus Act are inventing a reality, falsely claiming that college disciplinary proceedings investigate all sorts of violent crimes—drug dealing, armed robbery, perhaps even attempted murder—to justify their calls for colleges to adjudicate the violent crime of sexual assault. In fact, the only serious felony that OCR wants colleges to handle is sexual assault.

Gillibrand, meanwhile, has said that she opposes the Safe Campus Act because the “goal of any campus sexual assault legislation should be to encourage [alleged] survivors to report crimes.” Indeed, it should—and this is exactly what the Safe Campus Act does. This is in contrast to campus rape groups like Know Your IX, with which Gillibrand regularly cooperate, and which have openly discouraged crime victims from going to police, suggesting that accusers who file reports with the “violent criminal legal system” might be deported.

Slate writer Christina Cauterucci is remarkably non-curious as to why sitting U.S. senators could oppose a bill seeking to have more crime victims report their crimes to police. “If the Safe Campus Act were truly about due process,” she muses, “plenty of other students’ rights activists would have rallied behind it.” Really? When has any campus rape group backed meaningful due process—provisions such as mandatory discovery, the right to cross-examination, a rule requiring colleges to turn over exculpatory evidence, allowing the accused student enough time to develop his defense?

Is this the result of imagining a campus reality that doesn’t exist?

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).

Wendy Murphy Comes to the University of Virginia

The Office of Civil Rights’ mandated procedures for
investigating sexual assault are tilted heavily against the accused party. The
institution can
hire “neutral fact-finders” who produce the equivalent of a
grand jury presentment, deny the accused an advisor of his choice, add
witnesses that the accused student does not request, forbid the students from
cross-examining his witnesses, and judge the student according to a 50.00001
percent preponderance of evidence standard, an approach that mocks even the
pretense of due process.

It is remarkable, then, that one such accused student at
the University of Virginia was exonerated of the charges brought against him.
Unfortunately, what happened next was unsurprising.

The accuser hired an outside attorney–none other than controversial
victims’ rights lawyer Wendy Murphy–and filed a complaint with the Office of
Civil Rights. Murphy’s argument, as expressed to c-ville.com, comes close to
saying that a failure to convict amounts to an OCR violation. “The preponderance standard is simple,”
she told the newspaper. “When her accusations are deemed credible, and his
denials are not described with the same glowing terminology, she wins.” But
under the UVA system, the investigators (serving as the equivalent of a grand
jury) have the authority to deem an accuser’s claims “credible.”
For the
OCR even to consider such an absurd claim would be highly problematic.

The second disturbing element of this story comes from
the article itself. Penned by Graelyn Brashear, the article often appears as
little more than a press release for Murphy. Even though the accuser publicly
reiterated her allegations through a posting on Murphy’s facebook page–which
Brashear notes, was “widely
circulated among students,” c-ville.com kept her identity secret.

Nor does Brashear
inform her readers about what the UVA procedure actually entails. Beyond
referencing the shift toward a preponderance of evidence standard (which the
reporter comes close to celebrating, describing universities lacking the
standard as “holdout schools,” even as she notes concerns from FIRE and the
AAUP), Brashear doesn’t reveal that accused students can’t have an attorney
cross-examining witnesses, that the university considers the equivalent of a
grand jury or the police as “neutral,” or that the university is willing to
abandon even a circumscribed right to cross examine regarding some witness
statements. Given that most people outside the academy (indeed, most academics)
have little knowledge about the details of campus due process, it seems likely
that readers of Brashear’s article came away with the belief that the campus
judicial system resembles not the Kafka-like system envisioned by the OCR but
instead the Law and Order rules that
most citizens at least somewhat understand.

Most troubling, here’s how
Brashear described Murphy: “Wendy Murphy, an adjunct professor at the New
England School of Law and a frequent media commentator on issues of women’s
rights, has a reputation as a firebrand. ‘I’m an activist with my feet in the
courts,’ she said. Her battle cry is blunt: ‘The law is designed to facilitate
and perpetuate violence against women and children,’ she said.”

Virginia is a member of the ACC, and, of course, Murphy
has some experience with handling allegations of sexual assault at an ACC
school. In the Duke lacrosse case, the ubiquitous media commentator repeatedly
made false statements of fact about the case (nearly 20 of them in 2006 alone)
coupled with myriad unsubstantiated claims and bizarre interpretations of law.
These statements weren’t made in secret–and they received widespread attention,
including from the American Journalism
Review
.

Yet Brashear mentions none of this, and instead treats
Murphy as a wholly credible figure. Imagine, for instance, if the intro
paragraph had at least acknowledged that Murphy had a record of playing fast
and loose with the truth on claims of campus sexual assault: “Wendy Murphy, an adjunct professor at the
New England School of Law and a frequent media commentator on issues of women’s
rights, has a reputation as a firebrand, although in at least one high-profile
campus matter, the Duke lacrosse case, she repeatedly misstated both factual
items and questions of law, always in such a way that favored the accuser in
that case.”

Such a portrayal, it seems,
isn’t what cville.com thinks its readers should receive.

Yale’s New Low and the Sad Saga of Wendy Murphy

Few figures involved in the Duke lacrosse case behaved more disgracefully than Wendy Murphy, an adjunct professor at the New England School of Law. A  frequent TV commentator on the case, she  earned a reputation for defending Mike Nifong’s prosecution through myriad errors of fact, misstatements of the law, and deeply offensive statements such as her betting that “one or more of the players was, you know, molested or something as a child.” To Murphy, there are no false accusers of rape–so as soon as an accusation is made, a “victim” exists. The presumption of innocence, she has maintained, is no more than a presumption that the “victim” isn’t telling the truth.

That bizarre conception of due process is right at home at Yale. The university’s troubling new policies toward sexual assault allegations reached public attention through the New York Times‘s attempt to smear former Yale quarterback Patrick Witt, who was caught up in the university’s Kafka-like “informal complaint” system. (In this procedure, designed to give the accuser maximum control of how the process plays out, the accused student doesn’t even have the right to present evidence of his actual innocence, much less cross-examine the accuser or have legal representation.)

The Witt affair turned out to be the tip of the iceberg regarding due process–an internal report revealed that the “informal complaint” policy allowed Yale to set up a monitoring program for at least one faculty member without even telling him he’s under investigation. The allegation of sexual harassment alone was sufficient for the finding of guilt.

Now these sorts of arrangements will be the norm. Yale has entered into a consent decree with the Office of Civil Rights, ensuring the “use of the preponderance of evidence standard in determining whether sexual misconduct occurred”; promising an informal complaint procedure in the future in which no accuser has to face cross-examination from the person she accused; and creating a double jeopardy system in which the rare accuser who doesn’t get her way at the lower level can appeal a not-guilty finding.  So it’s almost fitting to see the commentator renowned for denigrating due process and the university that celebrated its own denigration of due process paired up in a race to the bottom.

The triggering event was a Title IX lawsuit–generated, Murphy claimed, by the Yale-OCR settlement–filed by her and another attorney, John Williams, on behalf Susan Burhans, who formerly served as security education coordinator for the Yale Police Department. The filing’s basic thesis: over the course of a decade, Burhans recommended a variety of policies which, if adopted, would have ensured that the OCR had no grounds for acting against Yale. But instead of Yale accepting her wise counsel, Burhans was fired.

 

A Connecticut Superior Court already appears to have dismissed Burhans’s case, for reasons that aren’t hard to discern, given some of the claims the lawsuit offers. Murphy and her co-counsel maintain that Burhans discovered that Yale accusers were “revictimized during sexual assault grievance procedures,” and demanded that her supervisors institute new procedures. (The complaint doesn’t reveal what these new procedures were.)

 

Burhans “experienced an increasing number of colleagues avoiding her,” which Murphy and her co-counsel suggest constitutes evidence that Yale violated Title IX. And the complaint wants to hold Yale liable for posting a $129,000 job in the security department requiring “qualifications Burhans did not possess.” Finally, the complaint reveals that Burhans applied for around 50 other jobs at Yale and didn’t get any. Again, it’s not clear how this is evidence of a Title IX violation.

 

Continue reading Yale’s New Low and the Sad Saga of Wendy Murphy

Campus Due Process, Obama-Style

In this
week’s Chronicle of Higher Education, Joseph Cohn, director of policy at
FIRE, summarizes
the due process implications of a letter sent to colleges and universities last
April by the Department of Education’s Office for Civil Rights. As was widely
reported at the time, the letter instructs schools to adopt the lowest standard
of proof in our judicial system, preponderance of the evidence, in cases of
alleged sexual misconduct, ranging from harassment to rape.

During
the Bush Administration, Cohn notes, colleges enjoyed greater flexibility in
their proceedings, and the Office of Civil Rights accepted a wide variety of
standards among institutions.  The new directive, signed by Obama
appointee Russlyn Ali, allows little latitude.
 

Supporters
have defended the lower standard of proof by citing civil lawsuits that also
rely on a preponderance outcome, but the elements of civil lawsuits that are
missing from campus hearings are worth listing:

  • Civil
    trials have impartial, legally-trained judges; campus hearings often rely on “a
    panel of faculty, students, and/or administrators.”
  • In civil
    cases, either party may demand a jury; in campus hearings, the option isn’t
    available.
  • In civil
    cases, parties have right to counsel; in campus hearings, “parties to these
    hearings frequently have no right to counsel.”
  • In campus hearings, “rules of evidence don’t apply,” and witnesses “are usually
    not placed under oath.”

According
to Cohn, of 198 colleges ranked by U.S. News & World Report, 30
institutions so far have complied.

This is a
travesty of due process, but it pleases advocacy groups such as the Women’s
Sports Foundation, the Association of Title IX Administrators, and Wendy Murphy
(remember the Duke Lacrosse Scandal?), all of whom signed a
statement
in support of the letter. One particular sentence in the support
statement indicates clearly why the new standard is a dangerous one.  It
reads: “The preponderance standard is the only equitable choice under Title IX
as it avoids the presumption, inherent in a higher standard of proof, that the
word of a victim is less weighty than the word of an accused individual’s
denial.”

Note the
acceptance of victim status for one party before the respective “words” have
even been given.  In some cases, of course, there will be physical
evidence of assault, but in other cases, we have precisely a contest of words
alone.  With the stakes so high for the accused, should the accuser’s
accusation be as “weighty” as the accused’s denial?  Yes, according to
these groups and the Obama Administration, and they dress it up in a language
of “equity.”

Can We or Can’t We ‘Target’ Women and Minorities?

virginia college.jpg

Why is it admirable to “target” women and minorities for some educational programs but a violation of federal civil right laws to “target” them in others?          

That’s the question that must be asked about a federal lawsuit filed by seven Mississippi women, five of them African-American, against for-profit Virginia College, a chain of 25 for-profit campuses in the Southeast.  All seven women used federal student loans at the college’s Jackson, Mississippi, campus to obtain degrees in such fields as medical assisting and phlebotomy. Their complaint against Virginia and its parent company, Educational Corp. of America, says those degrees are now worthless. It charges fraud and breach of contract along with other wrongdoing, and faults the college for pitching its advertising and recruitment to blacks and women.

Continue reading Can We or Can’t We ‘Target’ Women and Minorities?

The OCR’s Newest Target: Xavier University

The Cincinnati
Enquirer
reports that Education Department’s Office of Civil Rights (OCR)
has entered into its latest Title IX-related agreement with Xavier University.
Unlike the
OCR’s agreement with Yale
, which used a manufactured controversy to weaken
the due process rights of the university’s students, at least at Xavier the OCR
involved itself only in response to actual complaints of sexual assault. But,
as with Yale, the outcome revealed a basic lack of respect for the presumption
of innocence and fair play for all students.

The heart of the case at Xavier, according
to the Enquirer
: “Two female
Xavier students charged that a male student was twice allowed to remain on
campus after being found responsible for sexual assaults, and a third charged
that XU did not treat her fairly in her sexual harassment and stalking claim.”

In fact, the male student, Sean Marron, was acquitted of four counts of sexual assault in a bench trial. The trial records were sealed,
but
according
to the court reporter
, the judge ruled as he did “due to inconsistencies” in the accusers’ stories and “a lack of
evidence.” In the aftermath, Xavier dismissed two student life officials, on
grounds that they mishandled the female students’ on-campus complaints, before
the students filed criminal complaints against Marron.

Continue reading The OCR’s Newest Target: Xavier University

Here Come the Advocacy ‘Studies’

UCLA’s Proyecto Derechos Civiles — also known
as the
Civil
Rights Project
— has just published a useful
new study
suggesting the extent of racial discrimination in
graduate school admissions. It examined minority graduate enrollments in four
states with bans on racial preferences — California, Florida, Washington, and Texas
(where the ban is no longer in effect), and the results are nicely summarized in
this chart from the
Inside Higher Ed article
trumpeting the study:


Field

%
of Minority Graduate Enrollments Before Ban

%
After Ban

Drop
Since Ban

Engineering

6.2%

4.6%

-26%

Natural
sciences

7.8%

6.3%

-19%

Social
sciences

12.1%

10.2.%

-16%

Humanities

10.2%

9.0%

-12%

 

The Civil Rights Project, of course, touts
its findings
not as providing evidence of the degree of
discrimination in states without bans on racial preferences but rather as
dramatic proof “that the bans have led to marked declines in key areas of
graduate studies.” These findings, it claims, “are particularly timely as the
U.S. Supreme Court, during its upcoming fall term, will consider in Fisher v. University
of Texas at Austin whether race-conscious admissions policies are necessary to
produce the student body diversity the University believes is essential for its
educational success.”

Continue reading Here Come the Advocacy ‘Studies’

Student Editor Details the Corruption at Brown

As university after university follows the OCR’s mandate to lower the threshold for evaluating campus sexual assault claims–and thereby to increase the likelihood of convictions from false accusations–it’s worth keeping in mind cases in which even the pre-“Dear Colleague” procedure broke down. Caleb Warner’s is one such case; William McCormick’s is another.

Continue reading Student Editor Details the Corruption at Brown

The Notorious “Dear Colleague” Letter in Action

Inside Higher Ed brings interesting news today about how the infamous “Dear Colleague” letter from the Obama education department–which requires all sexual assault and harassment cases to be judged by the lowest possible burden of proof, a preponderance of the evidence–has affected one university campus. In response to the letter’s mandate, the University of North Carolina has reconfigured its disciplinary procedures, in part due to a desperate hope to retain some semblance of due process for accused students.

Continue reading The Notorious “Dear Colleague” Letter in Action

R.I.P. John Payton–But He Was Part of the Problem

“Top civil rights lawyer John Payton dies at 65; Obama calls him ‘champion of equality,'” the Washington Post reported a few days ago.

Although Payton, 65, had been a prominent Washington lawyer and, after 2008, director-counsel and president of the NAACP Legal Defense & Education Fund, he is probably best known for arguing a case he lost, Gratz v. Bollinger, where he unsuccessfully defended the University of Michigan’s rigid use of race in its point-system of deciding undergraduate admissions. (The University, as the Chief Justice wrote, “automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single ‘underrepresented minority’ applicant solely because of race” but only “up to 5 points for … extraordinary talent.”) That ruling, however, was overshadowed by the contradictory simultaneous holding in Grutter v. Bollinger, which allowed the law school (and hence every other institution in the country) to do by stealth and dissembling what the University’s undergraduate admissions officers had been prohibited from doing openly and honestly.

Continue reading R.I.P. John Payton–But He Was Part of the Problem

Justice Kennedy Should Read Richard Brodhead

The Supreme Court’s decision in Grutter operated on the basis of some unspoken assumptions. One was that regardless of how other applicants were affected, students admitted because of preferences benefited from the decision. Another was that universities could be trusted to handle issues of race fairly and efficiently, or at least more so than could the courts.

Continue reading Justice Kennedy Should Read Richard Brodhead

Confusion over Anti-Asian Discrimination

At the request of the unidentified Asian-American student who filed discrimination complaints against Harvard and Princeton, the Department of Education’s Office of Civil Rights has ended its investigation.

The civil rights office had folded the complaint against Princeton … into a compliance review begun in 2008 of whether that university discriminates against Asian-Americans.

The allegations in the 2011 complaint “will no longer be considered as part of OCR’s existing compliance review involving Princeton,” said an Education Department spokesman, who declined to be identified, citing department policy.

Continue reading Confusion over Anti-Asian Discrimination

Let’s Be Frank about Anti-Asian Admission Policies

Asian students.jpgOn February 2 Daniel Golden, former Wall Street Journal reporter and author of a highly regarded book on college admissions, reported in Bloomberg’s Business Week that Harvard and Princeton are being investigated by the Dept. of Education’s Office for Civil Rights for discrimination against Asians.

It’s not the first time. In fact, for the past decade or so there has been a rising tide of accusations that the Ivies and other selective institutions treat Asians as the “new Jews” (referring to quotas on Jews in the Ivies and elsewhere early in the 20th Century, and often beyond), holding them to much higher admission standards than applicants from other groups in order to prevent their “over representation” and thus make room for the “under-represented” blacks and Hispanics admitted under much lower affirmative action standards. Harvard and Princeton, of course, deny the accusation.

Harvard “does not discriminate against Asian-American applicants,” spokesman Jeff Neal told Business Week. “Our review of every applicant’s file is highly individualized and holistic, as we give serious consideration to all of the information we receive and all of the ways in which the candidate might contribute to our vibrant educational environment and community.” Princeton read from the same script: The college “doesn’t discriminate on the basis of race or national origin,” claimed spokesman Martin Mbugua. “We make admissions decisions on a case-by-case basis in our efforts to build a well-rounded, diverse class.”

Do Admissions Officers Really Believe What They Say?

Of course, despite all the smoke they blow (and, it would appear, inhale) about “holistic,” “highly individualized,” “case by case” evaluations, if admissions offices did not allow race to be the determining factor in many cases, how would they know whether any particular applicant would contribute to the pigmentary “diversity” they so diligently seek? It is simply a fact, as Roger Clegg has cogently pointed out, “if you consider race, then in some instances it’s going to make a difference in whether a person is admitted (otherwise, why bother to consider it?), and when that happens, you have racial discrimination.”

Extensive evidence that Asian American applicants must jump a much higher bar to gain admission to elite universities than applicants from other groups and that they have been the big gainers where affirmative action has been dropped has long been available and should no longer surprise anyone. For example, in a widely discussed Wall Street Journal article back in 2006, Is Admissions Bar Higher for Asians At Elite Schools? Daniel Golden (the author of last week’s Business Week article linked above) noted a Center for Equal Opportunity study finding that Asian applicants to the University of Michigan in 2005 had a median SAT score that was “50 points higher than the median score of white students who were accepted, 140 points higher than that of Hispanics and 240 points higher than that of blacks.” That study also found that “among applicants with a 1240 SAT score and 3.2 grade point average in 2005, the university admitted 10% of Asian-Americans, 14% of whites, 88% of Hispanics and 92% of blacks.” Golden also reported that after California abolished racial preference the percentage of Asian-Americans accepted at Berkeley increased from 34.6% in 1997, the last year of legal affirmative action, to 42% entering in fall 2006.

Although it is widely thought, especially by defenders of affirmative action, that whites benefit when racial preferences are eliminated (indeed, those defenders frequently accuse critics of being racists whose purpose is to benefit whites), that is not the case. As I noted here, citing this data, the proportion of white freshmen entering the University of California system “fell from 40% in 1997 to 34% in 2005.”

A 140-Point SAT Disadvantage for Asians

Similar data abound. In 2005, for example, Thomas Espenshade, a Princeton sociologist (more on him below), and a colleague published an article demonstrating that if affirmative action were eliminated across the nation “Asian students would fill nearly four out of every five places in the admitted class not taken by African-American and Hispanic students, with an acceptance rate rising from nearly 18 percent to more than 23 percent.” In a 2009 Inside Higher Ed article based on his book, No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life, Espenshade and another colleague wrote that

[c]ompared to white applicants at selective private colleges and universities, black applicants receive an admission boost that is equivalent to 310 SAT points, measured on an all-other-things-equal basis. The boost for Hispanic candidates is equal on average to 130 SAT points. Asian applicants face a 140 point SAT disadvantage.

asian-student.jpg

Summarizing Espenshade’s findings, Scott Jaschik, editor of Inside Higher Ed, gingerly concluded that “[s]ignificant advantages and disadvantages exist for members of some racial and ethnic groups with regard to the SAT or ACT scores they need to have the same odds of admission as members of other groups.” Since Espenshade concludes that black applicants to selective universities receive a 450 point “boost” compared to otherwise similarly qualified Asian applicants, I’d say that Jaschik’s statement oozes with obfuscatory politically correct understatement. That same tone suffuses Jaschik’s long article last week on the recent charge of anti-Asian discrimination at Harvard and Princeton. Because affirmative action is grounded (notwithstanding all the transparent claptrap about “diversity”) in a desire to help minorities, evidence that it significantly harms an ethnic minority makes its academic supporters as uncomfortable as a skunk at a garden party. Since they can’t refute the evidence, they try to argue that it doesn’t mean what it obviously means. Perhaps the Asians, they insinuate, are overly sensitive, imagining discrimination where it doesn’t exist. Here’s how Jaschik frames the issue (emphasis added):

What does it say about college admissions that a group achieving considerable academic success believes it is being held to unfair standards? Is there really proof to back up the widespread perception of bias? Are those who are convinced of bias relying solely on certain numeric measures? Are colleges hiding behind codes (such as the desire for someone who is “well-rounded” or concerns about “grinds”) to discriminate against Asian applicants?

Real Bias or Just ‘Belief in Bias’?

Jaschik’s article is characterized by this trope of a “belief in bias.” A few examples:

– Admissions counselors and advocates for Asian-American students say that belief in bias is widespread — and that the belief alone should be cause for concern…. – David Hawkins, director of public policy at the National Association for College Admission Counseling, said “he is aware of (and concerned about) the way many applicants see this issue … ‘but I suspect it’s much more complicated.'” – “In some cases, colleges have adopted policies that some see as hurting Asian-American applicants — without necessarily violating the law.” – “Debates over the relative merits of standardized tests also tend to be viewed by many through their impact on different applicant groups.” – “Many advocates for Asian-American students believe that some elite college admissions officers use phrases like “well-rounded” to favor white applicants of lesser academic quality over Asian-American applicants.”

In addition to implying that the “belief” in discrimination reflects little more than overheated Asian-American imaginations, Jaschik’s article also argues through its quotations of various defenders of affirmative action — and, as we shall see, through misleading summarizing by Jaschik himself — that treating Asian-American applicants significantly worse than other applicants does not amount to discriminating against them and should not be used to discredit affirmative action. Robert Teranishi, associate professor of higher education at New York University and author of Asians in the Ivory Tower: Dilemmas of Racial Inequality in American Higher Education, is “worried about efforts to link alleged bias against Asian-American applicants to broader debates over affirmative action.” According to Teranishi, “many Asian-American students in the United States” — such as poor recent immigrants — “deserve and benefit from affirmative action.” Really? That sounds doubtful to me, but perhaps Prof. Teranishi’s book presents data on vasts numbers of Asian-American applicants who are given preferential treatment in admission. The most dramatic, and unconvincing, denials that the data of Prof. Espenshade and others demonstrating the significantly higher hurdles faced by Asian-Americans amounts to discrimination against them comes from … Prof. Espenshade himself, who combines the mistaken Asian “beliefs” discussed above with outright denials of discrimination. In an interview last week with Jaschik,

Espenshade said that “all other things equal, Asian-American students are at a disadvantage relative to white students, and at an even bigger disadvantage relative to black and Latino students.” But he was quick to add that “this doesn’t mean there is discrimination.”

He noted that the modeling he has done is based on quantifiable measures such as grades and test scores. “We don’t have access to all the information an admissions dean does,” he said. “We don’t have extracurriculars. We don’t have personal statements or guidance counselors’ recommendations. We’re missing some stuff.” Those who assume that average scores indicate bias may not understand the many factors that go into college admissions at elite private colleges, he said. “The fact that these institutions are looking for a multiplicity of talent is more understood in some communities than others,” he said. “There might be a tendency of many Asian-American students to think that academic credentials are going to carry not only the most weight, but all the weight, in who gets admitted, and that isn’t so.”

The Ever-Handy Excuse of ‘Soft Variables’

asian students walking.jpgProf. Espenshade has been running from the implications of his research findings for years, as I argued here on Minding The Campus nearly two years ago. In a 2009 interview, for example, he told the Daily Princetonian that he did not use the word “discrimination” in discussing his study because “he did not have access to what he called ‘soft variables,’ like extracurriculars and teacher recommendations.

“The data we had is only part of the data that admission deans have access to,” Espenshade said. “If we had access to the full range of info, it could put Asian candidates in a different light. This so-called ‘Asian disadvantage’ does not necessarily mean that Asian applicants are being discriminated against.”

Leaving aside the awkward assertion that Asians have “a tendency” to “think” or “assume” or “believe” things that are not true and “may not understand” the complexity of the admissions process that is “more understood” in other “communities,” Prof. Espenshade doesn’t seem to recognize the clear implication of his reference to “soft variables” to deny discrimination: if there’s no discrimination, it’s because blacks and Hispanics are so much better at writing personal statements and performing extracurricular activities and securing outstanding letters of recommendation that their superior performance in these areas, compared to the hapless Asians, balances out their deficits in grades and test scores. Prof. Espenshade leans over so far backwards in attempting to deny discrimination against Asians that he stumbles well past lame or silly into territory, as I wrote on this site back in 2010, that “is almost humorously dumb, and offensive.”

The only person in Inside Higher Ed editor Scott Jaschik’s article who tries even harder than Prof. Espenshade to escape to the implications of Prof. Espenshade’s data is … Scott Jaschik. Referring to Prof. Espenshade’s book, Jaschik writes that “Asian-American applicants need SAT scores of about 140 points higher than students from other groups with equivalent academic qualifications to get admitted to competitive private institutions.” But that’s not at all what’s in Prof. Espenshade’s book or even what Prof. Espenshade wrote on Inside Higher Ed back in 2009. As we saw above, Espenshade wrote there that Asians must score 140 higher on the SAT than similarly qualified whites, not “students from other groups,” and that they must score 450 points higher than similarly qualified blacks.

Sometimes in the defense of affirmative action simple obfuscation isn’t sufficient. Those times call for outright denial, and editor Jaschik proves he is up to the task.

Ex-Justice: Civil Rights Act ‘Poorly Considered’

John Paul Stevens.jpg

When Justice John Paul Stevens retired from the Supreme Court in 2010 ABC News noted that over the course of his 34 years on the Court he “became a hero to liberals[,]  voting to … uphold affirmative action” and other liberal causes. Now he has written an autobiography, Five Chiefs: A Supreme Court Memoir, ruminating on that long, liberal career. Regarding affirmative action, however, those ruminations are misleadingly selective.

U.S. News World Report interviewed Justice Stevens a few days ago about his memoir, claiming that he “gives candid views of the five chief justices he has worked with, as well as his take on some of the most significant cases in U.S. history.” I don’t know about the other “most significant cases,” but Justice Stevens’ very brief references to affirmative action in Five Chiefs and his comments about it to U.S. News are considerably less than candid.

His comments in the book are limited to a few sentences about Grutter, where he endorsed Justice O’Connor’s rejection of “language in the Court’s earlier opinions that suggested that remedying past discrimination was the only permissible justification for race-based governmental action.” There was, of course, considerably more than “language” to that effect in those earlier opinions, but leave that aside. The point Stevens is at pains to make here is that the Court had finally

endorsed the views that I had unsuccessfully espoused in an earlier case that involved a black high school teacher in Jackson, Michigan. The Court’s holding — that the law school had a compelling interest in attaining a diverse student body — emphasizes the future rather than the past.

Stevens has been singing this same tune for quite a while. Shortly after swearing in the current Chief Justice, Justice Stevens emphasized the importance of “a flexible approach to the law” to a Fordham law school audience, adding that “learning on the bench has been one of the most important and rewarding aspects of my own experience over the last 35 years.” His example: “With respect to the constitutionality of affirmative action,” he said, “we have learned that justification based on past sins may be less persuasive than those predicated on anticipated future benefits.” Left unstated was who “we” are.

Looking to the Future, Not the Law

Stevens made that same point, and only that point, in his U.S. News interview, where his affirmative action comments consisted entirely of the following exchange:

Have you changed your view on affirmative action?

I had to make decisions in different contexts. And in some of the early affirmative action cases, Congress had passed a statute that was very poorly considered. In early cases, the courts seemed to think of affirmative action merely as a remedy for past wrongdoing.

What should they have done instead?

Looked at the benefit that affirmative action could produce for the future.

This “different contexts” explanation of his earlier views — which he failed to mention were the opposite of his later views — is disingenuous at best. That “very poorly considered statute” was, of course, the Civil Rights Act of 1964, perhaps one of the best considered pieces of legislation in our history, and in any event it is unseemly for a Supreme Court justice to blame opinions he now regrets on shoddy work by Congress. “Different contexts,” in short, doesn’t begin to describe or explain the radical transformation of Justice Stevens’ approach to governmental thumbs on the racial scale, especially when the reversal of his earlier views cannot be explained by any changes in the 1964 act, whose relevant text didn’t change.

Justice Stevens was correct to note that in Grutter the Court accepted the argument of his 1986 dissent in Wygant v. Jackson Board of Education that “diversity” can justify governmental distribution of benefits and burdens based on race. What he did not mention is that Wygant was decided eleven years after he had been appointed to the Court and that it was the first time he ever approved a racial classification. Indeed, over the course of his first decade on the Court Stevens had, in the words of a scholarly survey of his decisions on race, “seemed destined to be one of the Supreme Court’s most vigorous opponents of affirmative action.”

A year after his appointment Justice Stevens joined the opinion of the Court in McDonald v. Santa Fe Transportation Co., which held that the Civil Rights Acts of 1866 and 1964 protected whites as well as blacks from discrimination. Two years later, in a long concurring opinion in Bakke, he offered a penetrating, compelling criticism of the “diversity” road on which the Court had, he then thought, disastrously embarked. That criticism was based on a thoroughly researched and entirely persuasive analysis of the legislative history, intent, and clear text of that same Civil Rights Act of 1964 that he now derides as “poorly constructed.”

Here is a powerfully argued excerpt from Stevens’ concurrence (emphasis added but citations omitted):

Section 601 of the Civil Rights Act of 1964 … provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below. A different result cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted.

….

Petitioner contends, however, that exclusion of applicants on the basis of race does not violate Title VI if the exclusion carries with it no racial stigma. No such qualification or limitation of 601’s categorical prohibition of “exclusion” is justified by the statute or its history. The language of the entire section is perfectly clear; the words that follow “excluded from” do not modify or qualify the explicit outlawing of any exclusion on the stated grounds.

The only suggestion that the Civil Rights Act would allow discrimination against whites, Stevens emphasized, “came from opponents of the legislation.” He quoted the following, for example, from a Congressional opponent:

Presumably, the college would have to have a “racially balanced” staff from the dean’s office to the cafeteria….

The effect of this title, if enacted into law, will interject race as a factor in every decision involving the selection of an individual…. The concept of “racial imbalance” would hover like a black cloud over every transaction….

Justice Stevens rejected this view root and branch, quoting extensively from the record of debates to show that Congress quite clearly imposed a colorblind standard that barred discrimination for or against any race and that precluded the kind of imposed “racial balancing” feared by the Act’s critics. “Our Constitution is colorblind,” he quoted Sen. Pastore (D, RI) exclaiming (along with many others), “and so must be our government.”

The Ban on Racial Favoritism was ‘Crystal Clear’

In short, Stevens concluded, the Civil Rights Act’s prohibition of racial favoritism by the government was “crystal clear.” Nothing, he insisted,

justifies the conclusion that the broad language of 601 should not be given its natural meaning. We are dealing with a distinct statutory prohibition, enacted at a particular time with particular concerns in mind; neither its language nor any prior interpretation suggests that its place in the Civil Rights Act, won after long debate, is simply that of a constitutional appendage. In unmistakable terms, the Act prohibits the exclusion of individuals from federally funded programs because of their race. As succinctly phrased during the Senate debate, under Title VI, it is not “permissible to say ‘yes’ to one person, but to say ‘no’ to another person, only because of the color of his skin.”

Justice Stevens consistently opposed racial classification and preference for over a decade. In a sharply worded dissent in Fullilove v. Klutznick (1980), for example, he strenuously objected to a racial set-aside program, noting that allowing such a race-based program could create “a permanent source of justification for grants of special privileges.” Racial classifications, he argued, “are simply too pernicious to permit any but the most exact connection between justification and classification. Quite obviously, the history of discrimination against black citizens in America cannot justify a grant of privileges to Eskimos or Indians.” Indeed, he concluded, “the very attempt to define with precision a beneficiary’s qualifying racial characteristics is repugnant to our constitutional ideals.”

In short, it is clear beyond cavil that Justice Stevens’ decade-long belief that race-based affirmation action violates the “plain meaning” of Congress’s “perfectly clear,” “crystal clear” “distinct statutory prohibition” was not dictated by deference to a “poorly considered” Civil Rights Act. Those “crystal clear,” “perfectly clear” words, after all, didn’t change. Justice Stevens simply changed his mind, contributing significantly to an expansion of racial preference that ironically resulted in the fears of the opponents of the Civil Rights Act that it would lead to “racial balancing” proving more prescient than the denials of its supporters.

Everyone, of course, is entitled to change his mind. Learning, as Justice Stevens stated, requires that flexibility. But Supreme Court justices are not just anyone.

Because their opinions become law, when they change their minds they are obligated to provide reasons. And when their “learning” leads not to a deeper understanding of such substantively opaque terms as “due process” or even “equal protection” but, as with Justice Stevens, leads him to abandoning a long-held deference to an unchanged “crystal clear” legislative prohibition, he owes us an explanation that is totally absent from both his memoir and his U.S. News interview.

The Times Vilifies Another Athlete, Presenting No Evidence

Over the past year, FIRE has led a campaign of civil liberties
organizations against the Obama administration’s infamous “Dear Colleague”
letter, which ordered colleges and universities to lower the burden of proof in
their on-campus judicial proceedings. The letter demanded that all universities
receiving federal funds employ a “preponderance of the evidence” standard (in
other words, a 50.1 percent degree of certainty) to determine guilt on
allegations of sexual assault.

Given that campus judicial procedures already are tilted,
often wildly so, in favor of sexual-complaint accusers, the letter has produced
a guilty-unless-proven-innocent standard for accused students. In at least one
case, that of Caleb Warner at
the University of North Dakota
, the standard (before FIRE’s involvement)
amounted to guilty even when proved innocent by the local police.

Continue reading The Times Vilifies Another Athlete, Presenting No Evidence

No Research, Please, Unless It Helps Our Cause

A news story here has garnered some attention; it’s about how “Black students at Duke University are angry over a university research paper that found African-American undergraduates at the school are disproportionally more likely to switch from tough majors to easier ones.” There’s not much in it that denies the truth of the paper’s conclusion, but what’s interesting is that the story suggests that many think that researchers should keep such unpleasant facts to themselves:

“The implications and intentions of this research at the hands of our very own prestigious faculty, seemingly without a genuine concern for proactively furthering the well-being of the black community is hurtful and alienating,” wrote the officers of Duke’s Black Student Alliance in an email sent to the state NAACP.

Continue reading No Research, Please, Unless It Helps Our Cause

Elizabeth Warren–Well-Paid Populist Professor

Elizabeth Warren’s campaign for a Massachusetts senate seat may be most known outside the state for this statement she made a few months back:

“You built a factory out there?  Good for you.  But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for.  You didn’t have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did.”

Continue reading Elizabeth Warren–Well-Paid Populist Professor

A Black Eye for Brown In a Controversial Rape Case

I’ve written before of the peculiar case of Brown and
Marcella Dresdale
. In 2006, Dresdale accused another Brown freshman, William
McCormick, of sexual assault. But she didn’t go the local police, and she never
filed charges. Instead, she went to the Brown administration–over which, it
turned out, her father Richard, a major Brown donor, exercised considerable
influence. After a prosecution-friendly process in which McCormick’s only
advocate was an assistant wrestling coach, McCormick accepted what amounted to
a plea bargain, and agreed to leave Brown. The university never formally
investigated Dresdale’s charges.

There matters might have ended, but McCormick and his family
decided to file a federal suit against both Dresdales and Brown. Their basic
claim: that Brown had railroaded McCormick to accommodate the demands not of
justice but of a major donor.

The case meandered its way through various courts and judges
until this summer, but recently a district court had upheld McCormick’s
discovery demands–related to what sort of communication between the Dresdales
and Brown administrators about the case. It seems that the Dresdales really
didn’t want McCormick and his attorneys to get access to this material. On Wednesday,
the Dresdales and the McCormicks announced that they had reached an
out-of-court settlement.

As is customary in such matters, terms weren’t released,
though the fact that the development came so close on the heels of the
discovery order gives a good sense of which side prevailed. The settlement
also, ironically, proved the McCormicks’ claims that Brown effectively acted
not as an institution of higher learning but as an agent of the Dresdales. The
settlement’s terms preclude the McCormicks not only from suing the Dresdales
but also from suing Brown–even though Brown wasn’t officially a party to the
settlement negotiations. It appears that Richard Dresdale was willing to offer
more money to shield the school from the sunlight of discovery. Brown’s spokesperson,
however, issued an Orwellian statement about how, regardless of the apparent
cover-up and Brown’s fierce attempts to prevent the McCormicks from getting
access to data about the school’s decisionmaking process, “the university stood ready at all times during this
litigation to prove in court that it had acted appropriately and in accordance
with applicable laws, policies and procedures.”

A final point, on coverage of the case. Kudos to Bloomberg
News
, whose article on the settlement references the Dresdales by name.
Contrast that approach with the Laura Crimaldi of the Associated Press, whose
article never uses the Dresdales’ name
and instead explains that a settlement
was reached between McCormick, his family, and “his
accuser and her father
.” (This shielding policy even prevents the AP
from referencing the name of the case, McCormick
v. Dresdale.
) Again: Marcella Dresdale never filed charges. She appears
never to have gone to a hospital for a rape examination. Her father paid out an
undisclosed sum of money to prevent documents regarding Brown’s handling of the
case from coming to light. And yet the AP believes that she’s still entitled to
the cloak of anonymity?

Here Comes the Anti-Bullying Bureaucracy

The overwrought anti-bullying crusade has come in for heavy and very specific criticism from Hans Bader, the lawyer and writer who played a key role in keeping out a dangerous provision of a proposed federal law on how colleges must deal with campus sexual assault.

Though Washington officials call bullying a “pandemic,” in reality, Bader writes, incidents have been declining. Like the badly overstated AAUW report on sexual harassment discussed here last week, the unwelcome good news is…

Continue reading Here Comes the Anti-Bullying Bureaucracy

Star Chamber Provision on Campus Dropped

In April, the Department of Education’s Office for Civil Rights outlined a policy shift that represented perhaps the gravest threat to civil liberties on campus in a generation. Worse, Sen. Patrick Leahy inserted a provision in a draft of the Violence Against Women Reauthorization Act of 2011 that would have made the dubious new policy part of federal law. The provision required college students accused of sexual assault to be tried under a weak “preponderance of evidence” standard that would have made it almost impossible for many falsely accused students to clear their names.

Continue reading Star Chamber Provision on Campus Dropped

Sorry, Charlotte, I Only Wish I Were Wrong About Columbia

In her thoughtful and intelligent critique of my case against Columbia University, Charlotte Allen agrees with my basic concern when she writes that what’s wrong at Columbia is “the university’s continued support of professors who have turned their classrooms into bully pulpits for preaching religious and ethnic hatred.”  She disagrees, however, with whether OCR should (also) look into whether the departmental chair’s conduct has subjected at least one Jewish student to unlawful discrimination under Title VI of the Civil Rights Act of 1964.  Charlotte makes one strong point:  ironically enough, the chair’s advice may have been factually correct, in the sense that a reasonable Jewish student might be made to feel objectively offended or “uncomfortable” by what transpires in Prof. Massad’s classroom.  Since a prior internal investigation of Massad’s alleged anti-Semitism was dismissed by many observers as a “whitewash,” we will not know how right the departmental chair was absent a full, impartial investigation such as OCR could provide.  To say that the advisor may be right factually is not however to concede that she was correct legally or ethically.

Continue reading Sorry, Charlotte, I Only Wish I Were Wrong About Columbia