Tag Archives: Office for Civil Rights

DeVos’ New Focus on Rights of the Accused

In her speech last week on how colleges handle accusations of sexual assault., Education Secretary Betsy DeVos promised to “end the era of rule by letter” begun by the Obama administration. The reference was to the “Dear Colleague” letter sent to colleges and universities by the Education Department’s Office for Civil Rights on April 4, 2011, offering “guidance” but in effect mandating new procedures notably harsher toward the accused. Hundreds of schools were placed under federal investigation for failing to treat allegations of sexual assault more vigorously. Schools responded quickly—building a campus “court system” that venerated victims, villainized the accused, and sometimes disallowed evidence pointing to the innocence of the accused.

The deck was quickly stacked against the civil rights of the accused by discouraging cross-examination of witnesses, and in many cases, refusing legal representation for the accused. A lower standard of evidence was created to determine guilt as nearly all campuses quickly adopted the “preponderance of evidence” basis for guilt rather than the “clear and convincing” standard they used in the past.

While a handful of Republican female lawmakers like Senator Kelly Ayotte has promoted harsher penalties for campus sexual assault, there is a dramatic difference between the ways in which the Republican Party platform differs from the Democratic Party platform.  The Republican platform clearly supports due process for all those involved by stating that “Whenever reported, it must be promptly investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge.

Questions of guilt or innocence must be decided by a judge and jury, with guilt determined beyond a reasonable doubt.”  In contrast, the Democratic Party platform demands “comprehensive support for survivors and sexual violence prevention programs in colleges and in high schools. And although they promise a “fair process for on-campus disciplinary proceedings,” they want to keep the proceedings “victim-centered” in what for most of the accused is a hostile environment on campus.

Demanding that colleges and universities comply, the OCR threatened the withdrawal of federal funds from schools that failed to set up an elaborate—and costly—Title IX bureaucracy on each campus—replete with full-time Title IX coordinators. A recent Atlantic article by Emily Yoffe pointed out that Harvard now has 55 Title IX coordinators, and Wellesley College has a full-time Title IX coordinator to oversee sex discrimination on its all-female campus. According to The New York Times, the OCR currently has 496 open sexual assault cases, and the average length of a case is 703 days. The longest pending higher education cases against the University of Massachusetts-Amherst and Arizona State University have been open for more than five years.

The Foundation for Individual Rights in Education (FIRE) recently issued a “Spotlight on Due Process 2017,” a rating of the top 53 universities in the country based on 10 fundamental elements of due process. The report describes the findings as “dire.” Nearly three-quarters (74%) of America’s top 53 universities do not even guarantee students that they will be presumed innocent until proven guilty. Fewer than half of the schools (47%) require that the fact-finders – the institution’s version of judge and or jury—be impartial. Forty-five of the 53 universities studied received a D or F rating from FIRE for at least one disciplinary policy, meaning that they fully provided more than 4 of the 10 elements of a fair procedure that FIRE rated. Seventy-nine percent of the 53 rated universities received a D or F for protecting the due process rights of students accused of sexual misconduct.

Some of the most prestigious Catholic colleges in the country received the lowest ratings for providing due process rights to individuals accused of sexual misconduct. For example, Boston College received one of the lowest ratings of the 53 schools—an F-rating—for failing to provide a clearly stated presumption of innocence, adequate written notice of allegations, adequate time to prepare for the disciplinary process including notice of the hearing date, and a prohibition on conflicts of interest that could compromise the integrity of the process. The University of Notre Dame received a D rating. Neither Notre Dame nor Boston College provides the accused with the right to counsel. But, both schools fared better than Washington University in St. Louis which received a zero—the lowest score of all 53 schools rated – providing none of the procedural safeguards.   Of the 53, none received an A grade. Two institutions (Cornell and UC Berkeley) received a B for their policies to protect students, and an additional six received at least a C rating.

Senator Kamala Harris is correct when she states that Title IX protections are a civil rights issue. But, she fails to understand that the civil rights of an entire class of individuals have been ignored. Worse, there is an emerging concern that race may appear to play an important role in the denial of due process. A 2015 article by Harvard Law School Professor Jeannie Suk Gerson, published in The New Yorker, found that “in general,” the administrators and faculty members she has spoken with who work on sexual misconduct cases indicate that “most of the complaints they see are against minorities.”

Earlier this month, Emily Yoffe’s essay, “The Questions of Race in Campus Sexual Assault Cases,” was published in The Atlantic. She asks, “Is the system biased against men of color?” And although the data to answer this question with certainty is not available, Yoffe provides preliminary data that are certainly suggestive—and she provides a clear direction for further research. For example, Colgate was recently investigated by OCR for potential race discrimination in its sexual assault adjudication process. Although the university was cleared, there are significant disparities in the numbers. In the 2013-14 academic year, 4.2 percent of Colgate’s students were black, but in that year black male students were accused of 50% of the sexual assault violations reported, and they made up 40% of the students formally adjudicated.

From 2012-2015, black students were accused of 25% of the sexual misconduct reported to the university and comprised 21% of the students referred for formal hearings. Yoffe lists several other schools involved in civil lawsuits filed by accused male students with what she calls “racial aspects” including Amherst, Butler University, Drexel, Indiana University of Pennsylvania, Swarthmore, the University of Findlay in Ohio, University of Pennsylvania, and William Paterson University in New Jersey. Yoffe points out that “Each lawsuit states that the student or students were subject to specious charges and in some cases abrupt expulsions because they were minorities.”

The denial of due process protections to the accused—whatever their race—is certainly a civil rights issue and demands systematic data collection and public scrutiny. Secretary DeVos knows it is time to end the real violations of the civil rights that have been occurring in campus kangaroo courts. We should all be grateful to her for having the courage to do just that.

Critics Slam DeVos for Being Fair

Nearly 60 Democratic legislators tweeted criticism of Education Secretary Betsy Devos’ speech, which advocated a fairer approach and more respect for due process in campus Title IX tribunals. The preferred adjectives included “terrible,” “despicable,” “insulting, “perverse,” “appalling,” “disgraceful,” “shameful,” and “dangerous. No congressional Democrat, in any way, praised her remarks, which insisted on the rights of both accusers and accused.

Most of this commentary showed little or no awareness of what goes on in these hearings and how unfair many are to the males involved. Former Vice President Joe Biden went even further than most, telling accusers’ rights activists that they needed to continue to speak up, offering an “analogy” to critics of the “Nazis marching” in Virginia: “When we’re silent, we give a rationale, an excuse to people who are the very people we’ve been fighting all along.”

Twenty-nine Democratic or Democratic-affiliated senators (three-fifths of the Senate Democratic caucus) followed this activity with a letter to DeVos. The senators demanded that the Secretary keep in place the Dear Colleague letter, the symbol of Obama-era unfairness, even as their document didn’t mention the presumption of innocence, due process, or fairness. Their letter’s only mention of “justice” came in a section that spoke of “survivors [emphasis added] in obtaining justice.” It seems, alas, that even-handed justice is no longer a goal for congressional Democrats.

Accusers’ Rights Activists

If Democratic legislators chose vitriolic, over-the-top rhetoric to respond to DeVos, the preferred approach of the accusers’ rights movement was an affirmative attempt to mislead. The pattern began during DeVos’ speech itself; as the Secretary recounted cases of students being denied due process, Know Your IX co-founder Alexandra Brodksy tweeted that these abuses of fairness all somehow violated the Dear Colleague letter. It should go without saying that in the 180 or so due process lawsuits, Know Your IX has never filed an amicus brief making such a point. That’s no surprise coming from an organization whose other co-founder, Dana Bolger, had celebrated perhaps the single most unjust of any of the post-Dear Colleague campus cases, the Amherst one.

In an article saying that DeVos’ speech was “profoundly stupid,” Know Your IX Sejal Singh fantastically claimed that the Dear Colleague letter “affords students accused of sexual violence with more procedural rights than . . . the Due Process Clause of the Constitution otherwise provides students in campus discipline.” (Her citations for this remarkable assertion were two pieces by Know Your IX’s Brodsky.) Singh’s op-ed would have come as news to judges in the recent Penn State and Miami decisions, both of whom cited the Due Process Clause in cases dealing with a refusal to provide exculpatory evidence to the tribunal (not mentioned in the Dear Colleague letter at all) and refusal to allow cross-examination (discouraged by the Dear Colleague letter). It’s hard to know whether Singh and her Know Your IX colleagues are being deliberately misleading, or are simply ignorant of an issue with which they have been involved for several years.

Higher-Ed Status Quo

The third group of DeVos critics came from within the higher-ed establishment itself. Wesleyan president Michael Roth, for instance, tweeted, “We must #StopDeVos from pushing us back 2 an era when assault and harassment were acceptable parts of campus culture.” (He was responding, it’s worth noting, to a speech organized around a theme that due process served all sides.) Roth recalled for the New York Times “‘the times when men, with impunity, would throw their weight around,’ sexually harassing and assaulting women . . . ‘Changing that culture over the last decade, as the Obama administration tried to do, was an enormous contribution.’” The Obama guidance was issued four years after Roth took charge at Wesleyan. There’s no evidence he informed prospective parents of the extraordinarily dangerous situation that purportedly existed on his campus between 2007 and 2011.

Then there was a Chronicle piece (celebrated by accusers’ rights activists) by higher-ed lawyer Scott Schneider, former associate general counsel at Tulane who provides what he describes as “expert witness testimony on matters dealing with institutional response to allegations of sexual misconduct and designs and delivers training programs on a host of education issues, including Title IX compliance obligations.”

As Scott Greenfield has pointed out, Schneider left the erroneous impression that 1997 OCR guidance and the Supreme Court adopted the same “definition” of sexual harassment, for a period of “almost 20 years.” The 1997 OCR guidance speaks of sexual harassment that is “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program.” By contrast, the Supreme Court, in 1999, used the following formulation: “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience.” (The emphasis in each instance is added to show the differences between the two “definitions,” with the Supreme Court’s notably tighter than the OCR guidance Schneider elected to quote.) Perhaps Schneider simply assumed (likely correctly) that most Chronicle readers wouldn’t bother checking on the precise wording of Davis to note the differences between it and the 1997 OCR guidance he quoted.

For the most part, Schneider’s approach to DeVos’ speech was to interpret the Secretary’s words divorced from the context of the six years since the Dear Colleague letter. After, for instance, quoting DeVos’ concerns that witnesses might not be cross-examined and evidence might not be presented to both parties, Schneider asserted, “In its 2014 ‘Questions and Answers on Title IX and Sexual Violence,’ the department’s Office for Civil Rights, or OCR, also noted that ‘in all cases, a school’s Title IX investigation must be adequate, reliable, impartial, and prompt, and include the opportunity for both parties to present witnesses and other evidence.’”

There have been dozens of lawsuits since the issuance of the Dear Colleague letter dealing with these themes. Moreover, the whole thrust of the single-investigator model is to eliminate any form of cross-examination and minimize the amount of evidence that an accused student sees. During her nearly four years running OCR, Catherine Lhamon ignored the lawsuits as the White House spoke positively of the single-investigator model. Lhamon refused to meet with groups advocating for accused students (SAVE and FACE); she initially refused (in writing) to even meet with FIRE. The Obama administration spent four years in one-sided publicity portraying the nation’s college campuses as awash in violent crime, with Lhamon publicly threatening to pull funds if they didn’t do enough. And it’s Schneider’s argument that pulling out a line OCR showed no interest in enforcing—while ignoring what OCR actually did during the Lhamon years—showed that DeVos had misstated the guidance?

Similarly, in a passage quoted by Greenfield, Schneider chastised DeVos for saying that “even lawyers” found Obama-era guidance “confusing” to navigate. The expert witness would have none of it: “In the event that there was any confusion about that guidance,” he reasoned, the 2014 “Questions and Answers” document provided the needed “straightforward” answers.

Consider just one sentence from the 46-page 2014 guidance: “Of course, a school should ensure that steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.” Is that sentence “confusing”—or, as Schneider claimed, “straightforward”? Given that multiple courts (not to mention myriad filings from lawyers on both sides of the issue) have come to dramatically differing conclusions on due process and Title IX tribunals, it does seem as if some lawyers—that is, federal judges—don’t consider the guidance to be “straightforward.”

But Schneider’s article served a purpose—not necessarily persuading people, but muddying the waters enough for defenders of the status quo to present a tenable claim that DeVos was wrong. After all, they can say, the Chronicle published it.

De Vos to End One-Sided Campus Sex Rulings

In the debate over campus due process, it would be difficult to overstate the significance of Education Secretary Betsy DeVos’ George Mason speech. No comparable address occurred during the Obama years—former Education Secretary Arne Duncan largely deferred on the issue to Russlynn Ali and Catherine Lhamon, who ran the Office for Civil Rights (OCR) during the Obama years. Ali and Lhamon spent years evading the obvious question: why was it necessary, in April 2011, to reinterpret Title IX to allow the federal government to dictate campus sexual assault procedures? When Lhamon finally provided a written response to that question, in 2016, her purpose seemed to be more to mislead than explain. Indeed, the fact that DeVos even met with students who said they had been wrongly accused of sexual assault—something that Ali and Lhamon refused to do—was a path-breaking decision.

In the aftermath of the DeVos speech, four themes are worth considering.

Culture of Due Process

Before the speech, an astute observer of campus sexual assault predicted to me that the DeVos address would function as a Rorschach test, and he proved correct. The Education Secretary repeatedly, and forcefully, denounced sexual assault. She also discussed due process, including in some of these passages:

  • “One person denied due process is one too many.”
  • “Justice demands humility, wisdom, and prudence. It requires a serious pursuit of truth.”
  • “No student should be forced to sue their way to due process.”
  • “Any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination.”
  • “Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.”

In virtually any other context of American life (with, perhaps, the exception of some national security debates), these comments would be seen as embodying fundamental American principles—which, of course, they did. Yet DeVos’ comments generated furious condemnation from Democratic politicians and liberal activists (David French summarizes, and critiques, some of the more strident of these claims.) The left-wing commentator Amy Siskind deemed DeVos’ speech a signal toward authoritarianism, before proclaiming, “STFU with your hackneyed due process talking point.” Stanford Law professor Michele Dauber described the speech as “one long dark dog whistle for men’s rights activists.” Rob Ranco, a Texas civil rights lawyer, said after the speech that he would “be OK if Betsy DeVos was sexually assaulted.”

These statements—again—came in response to a speech in which the Education Secretary repeatedly condemned sexual assault and repeatedly expressed her desire to see colleges handle sexual assault allegations under the banner of Title IX.

Yet, it’s clear, her belief that due process is important in the Title IX context is now seen in many quarters as excusing rape—that a system that allows accused parties basic rights and protections is one that will somehow always yield a not guilty finding. This is an enormous, and deeply troubling, cultural change. But it’s also, unfortunately, the logical outgrowth of the Obama administration’s approach to this issue. Six years of an implicit (and occasionally explicit) message that due process was an obstacle, rather than a necessary prerequisite, to campus justice has brought us to this point.

Democrats and the Accusers’ Rights Movement

Neither of our two major parties has a good record on civil liberties and due process matters, but over the past 50 years, the Democrats traditionally have been the more supportive party on these questions. On campus due process, however, the Democrats have become the accusers’ rights party, with no daylight between key party members and the accusers’ rights movement.

Former Vice President Joe Biden, for instance, spent the day after the DeVos speech appearing at an event hosted by Know Your IX, probably the most extreme of the major accusers’ rights organizations. Bernie Sanders, who in his 2016 presidential bid had (correctly) said law enforcement should handle campus violent crime, realized that he needed to reverse himself in the new party climate, and immediately condemned DeVos’ speech.

California Senator Kamala Harris, another prospective 2020 presidential candidate, came out against a presumption of innocence in campus sexual assault cases. In a tweet responding to a news report indicating DeVos’ skepticism about Obama-era guidelines, Harris thundered, “Survivors of sexual assault deserve to be believed, not blamed.” The statement recalled the notorious remarks of Dartmouth Title IX official Amanda Childress: “Why could we not expel a student based on an allegation?” That a U.S. senator and former state attorney general is now as extreme as an obscure campus administrator gives a sense of how dramatically the accusers’ rights perspective, once a fringe, has consumed the Democratic Party.

The two most significant Democratic statements, however, came from Washington Senator Patty Murray. The first—which deserves far more attention than it has received—came the day before the DeVos speech. In a press release, the Washington senator maintained, “The standard of proof guidance provided in the [Dear Colleague] letter has led to more women and men coming forward about their sexual violence experiences.” This was the clearest statement I’ve seen from a defender of the Obama-era policies that reporting will increase if colleges rig the procedures to increase the chances of a guilty finding. Much like Harris’ statement, this mindset presumes guilt.

The day after DeVos’ speech, Murray wrote the Education Secretary to demand that the Dear Colleague letter should be retained. Absent from her missive: any reference to “due process,” “fairness,” or “presumption of innocence.” In a world where every allegation was clearly true, the perspective of Murray and many of her fellow Democrats—in favor of a campus process designed to vindicate all accusers’ allegation might make sense. In the world in which we live, the party’s abandonment of civil liberties for college students is outrageous.

It’s also worth noting that while Democratic legislators might have abandoned due process, many prominent liberals and feminists have not. Harvard Law professors Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet, and Nancy Gertner have been tireless on this issue; Suk Gersen’s co-authored law review article (with Jacob Gersen) and her New Yorker columns on Title IX and due process are must-reads. Laura Kipnis’ book penetrated into the public consciousness in a way that no other work on this topic has done. Lara Bazelon has written several influential commentaries. Emily Yoffe’s research-based journalism at Slate and now the Atlantic provides a reminder that a left-of-center worldview doesn’t require accepting junk science or the infantilization of women. And, as I’ve noted previously, while I’ve been very critical of the Obama-era policies, I was nonetheless an Obama donor and voter in both 2008 and 2012.

The Rationales of Obama Officials

The clearest explanation for Obama’s policies from either of his two OCR heads came in this 2014 exchange between Catherine Lhamon and Tennessee Senator Lamar Alexander. Lhamon preposterously claimed that by confirming her, the Senate gave her the authority to “explain” Title IX—including, it seems, to the Senate itself, and by the threat of losing federal funds to all colleges and universities.

The response of high-level Obama Education Department officials to the DeVos address perhaps explains their previous public reticence. Lhamon seemed to express opposition to any executive branch office or agency using the regulatory process, as opposed to (her preference) issuing unilateral guidance. Ali wildly asserted that DeVos’ address would “take us back to a system that disempowers and silences survivors of sexual violence.” Weakening due process as the 2011 guidance did, Ali continued, amounted to “common sense protections,” and removing these provisions would create “an environment that is hostile to student survivors of sexual violence.”

The former boss of Ali and Lhamon, Education Secretary Arne Duncan, bizarrely suggested that DeVos’ speech meant that she was “choosing politics over students.” As Duncan surely knows, the politics of this issue move in one direction and one direction only—against due process for accused students. There was zero political benefit to DeVos’ remarks—she did the right thing morally and ethically, but took a political risk.

How Campus Tribunals Operate

A final point: I’ve noticed even in some columns supportive of DeVos’ efforts an acceptance of one vital element of the Obama narrative: that some action was necessary in 2011 because colleges were indifferent to the victims in their midst. At one level, this is true—doubtless, colleges were indifferent in the 1970s or 1980s when people challenged whether “date rape” could even occur. And there were some key cases involving athletes in the 2000s where colleges clearly looked to sweep things under the rug.

But, more generally, the claim that the typical college campus in the years immediately before the Obama guidance routinely mistreated sexual assault accusers is a hard argument to credit. We actually have a good case study of this: the Duke lacrosse case. Here was a claim that was as false as a rape claim possibly could be. Yet 88 Duke professors signed a public document affirming that something “happened” to accuser Crystal Mangum, and promising to continue their crusade “regardless of the results of the police investigation.” The Duke administration, behind the scenes, seemed equally willing to presume guilt. Could such a campus leadership—whose basic ideological culture on gender issues was comparable to that of most elite schools in the decade before the 2011 Dear Colleague letter—was celebrating the truth of Crystal Mangum but doubting the veracity of actual student victims?

Nor were pre-Obama Duke procedures somehow unfair to the accuser. Quite the reverse: after the lacrosse case, the university revised its sexual assault procedures to make it far more likely an accused student would be found guilty, while dramatically expanding the definition of what constituted sexual assault on the Duke campus. The new definition stated as a “guiding principle” a reminder that “real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” That is two years before the Obama administration acted, a Duke student could be found guilty of sexual assault if his accuser “perceived” him as more powerful, thereby creating “unintentional” coercion—even if he did absolutely nothing wrong.

Again, does this sound like an environment that was indifferent to campus victims?

More on Title IX Corruption at Yale

In a 2012 resolution agreement with the Office for Civil Rights, Yale became the nation’s only university required to document all sexual assault allegations on campus. The reports, prepared by Yale Deputy Provost Stephanie Spangler, are generally bare-bones (and became even more so last year, after Spangler announced she’d decided to supply less information about some unresolved complaints), but nonetheless provide a peek into the deeply unhealthy atmosphere—at least at elite campuses—regarding the investigation and adjudication of sexual assault complaints. The most recent of the Spangler Reports, which covers events in the first six months of 2017, has now appeared.

Minding the Campus has covered each of the previous Spangler reports, which have included such items as:

As always, Spangler notes that the university “uses a more expansive definition of sexual assault” than does either Connecticut state law or the federal government (through Clery Act requirements). The university has never offered an explanation as to why it does so. As she did for the first time in her early 2017 report, Spangler has added adds a vague assertion that it “assigns complaints to general categories such as ‘sexual assault’ . . . that encompass broad ranges of behavior”—but, again, why sexual assault should “encompass broad ranges of behavior” beyond the common legal or cultural understanding of the term remains a mystery.

Channeling Crime Victims Away from Law Enforcement

Defenders of the Obama-era Title IX guidelines generally deny that the guidelines undermine society’s goal of punishing criminals through the judicial system. Rather, they suggest, filing a Title IX complaint doesn’t preclude an accuser from also going to the police.

The Spangler Reports show the shortcomings of this argument: for the vast majority of accusers, the choice between Title IX and law enforcement is an either-or selection. (This should come as little surprise, given the anti-judicial system rhetoric of much of the accusers’ rights movement.) The most recent Spangler document indicates that only 3.7 percent (1 of 27) of Yale accusers who say they were sexually assaulted reported that offense to the police. All others went to the Title IX office. This figure is typical: for the July-December 2016 period, 4.3 percent (1 of 23) of accusers went to the police.

Through procedures ordered by the federal government, Title IX tribunals function as de facto substitutes for law enforcement and only heighten the importance of their failure to provide fair procedures. Indeed, this kind of system provides support for Jed Rubenfeld’s argument that the Due Process Clause should apply to campus Title IX adjudications.

Danger

As described by Spangler, the Yale University campus is one of the most dangerous neighborhoods in the entire country. The report indicates that 0.8 percent of female undergraduates considered themselves a victim of violent crime (either sexual assault or intimate partner violence) in the first six months of 2017 alone. Such an annual rate has a typical Yale female undergraduate as at nearly as much risk as a resident of Detroit (the nation’s most dangerous city) of being a victim of all forms of violent crime.

And, Spangler assures her readers, Yale’s campus is even more dangerous than these figures suggest. “We know,” Spangler writes, that a “significant number of individuals who have experienced sexual misconduct do not report their experiences to University officials or seek support from University resources.” So, for a typical female undergraduate, Yale might actually be more dangerous than Detroit. Yet parents are still eager to spend upwards of $250,000 to send their daughters into this den of violent crime.

Yale’s disciplinary sentences, however, seem to be at odds with Spangler’s picture of a campus beset by an epidemic of violent crime. All three undergraduates who appeared before the UWC (Yale’s Title IX disciplinary tribunal) unsurprisingly were found guilty, though one was cleared of the most serious charges. The sentences? A reprimand, a three-term suspension, and a two-term suspension. The latter two punishments came for students found guilty of “sexual penetration without consent.”

There are two ways of interpreting this data. First, Yale believes that rapists—an offense that describes “sexual penetration without consent”—should not be expelled. Second, amidst a moral panic, Yale has so redefined what constitutes “sexual penetration without consent” as to trivialize the offense.

The Title IX Coordinator

Continuing a pattern evident in the last couple of Spangler Reports, the vast majority of cases were clustered in the Title IX coordinator—23 of 27 reports of sexual assault went not to police or even to a hearing, but instead just to the coordinator. In one respect, this is a good thing: an accuser can receive accommodations (including academic accommodations) without activating the kangaroo court. (Some of these allegations come across as almost blatant attempts to obtain accommodations, as in the Yale undergraduate who “reported that an individual whom the complainant did not identify sexually assaulted the complainant.”) In most of these cases, the accused student received counseling and a no-contact order (the allegation always appears to have been presumed true), but no additional punishment.

There are, however, two interesting items from the coordinator cluster. First, for the second consecutive reporting period, the Title IX office itself filed no sexual assault complaints against Yale students. This change reverses the previous practice of the office, rather than the accuser, filing complaints. It’s doubtless a coincidence that this shift came just after a lawsuit filed by Jack Montague, who was found guilty after the office, rather than his accuser, filed the Title IX charges against him. Ironically, this sudden disinclination of the Title IX office comes after the Spangler Report eliminated restrictions on the kind of complaints the office was supposed to file. The office’s disregard of those restrictions is at the heart of the Montague lawsuit.

Second, one way to see the Spangler Report is as a document designed to appease (or fuel) a campus accusers’ rights movement. The report provides no information about nearly three-fifths (16 of 27) of the sexual assault complaints filed by undergraduates. These were cases in which the accuser expressly asked the Title IX office to do nothing in cases that came to the attention of the Title IX office “from a third party, such as an administrator, a friend of those involved, or a witness.” Yet for the purpose of the report, each of these allegations is treated as a legitimate claim. When Spangler provided information about these sorts of cases, the summary often read something like a Yale student reported that an unknown student was sexually assaulted by another unknown student. A system that treats such reports seriously is hard to take seriously.

Updates

The previous Spangler Report promised that the university was “working to shed more light on Yale’s procedures through the creation of additional ‘hypothetical case scenarios’ that address a broad range of behaviors and are tailored to local campus communities.” No new scenarios appeared—the current report, instead, linked to the existing version of the scenarios, which Yale had appeared to ignore in the Montague case. It’s hard to escape the conclusion that the lawsuit explains the sudden non-availability of new scenarios.

The previous report also implied that the Title IX office would be working to address unspecified “patterns of academic” life through a program that “has been offered in numerous departments” Such a plan seemed to violate academic freedom, by giving staff the power to dictate content. It’s unclear from the current report whether Spangler moved ahead with her effort.

How Colleges Promote Censorship and Undermine Free Speech

In Brave New World, Aldous Huxley writes: “There isn’t any need for a civilized man to bear anything that’s seriously unpleasant.”  In his sanitized future, general happiness and social stability are achieved not via threats of legal action but rather through perfect genetic and behavioral engineering, endless indoctrination, anodyne feel-good phrases and drugs, and organized outlets for intense emotion and lust.  “That is the secret of happiness and virtue–liking what you’ve got to do,” explains Huxley’s Director of Hatcheries (where test-tube babies are produced).

Alas, we’re not there yet, hence the recourse to crude legal instruments backed up by moral grandstanding is still essential. Given the pesky First Amendment, however, thus far valid in contemporary America despite ever more frequent attacks, not just any claim to hurt feelings can be used to shut down others’ speech. Learning which words are most effective in preventing the expression of views and comments we don’t like is, therefore, a crucial step if one wants to be successful in ushering in the utopian future.

In more legalistic terms, offending words and gestures can be said to deprive college women of the right to an equal education, thus constituting illegal discrimination. That is the language of Title IX of the Education Amendments of 1972, prohibiting discrimination on the basis of sex in educational programs that receive federal funds.  Expanded over the years to include such categories as “hostile environment harassment,” Title IX turned out to be a godsend to those determined to go through life free of unpleasant words, vulgar jokes, suggestive glances, and, as has become clear, ideas and viewpoints they dislike. In today’s academy, insisting that one feels unsafe or threatened is a routine and usually effective opening move in attempts at controlling others’ words and attitudes.

A recent example:  A student group called Feminists United has filed a Title IX lawsuit against the University of Mary Washington, alleging that by declining to ban access to Yik Yak, the school failed to protect them from disagreeable posts on the anonymous app.  The requisite linguistic expertise was on full display, with the suit referring to the “overtly and/or sexist/threatening” anonymous messages on Yik Yak, which allegedly created a “hostile environment” for the group.

True, there are slight glitches in the group’s charges. The Supreme Court standard (established in the 1999 case Davis v. Monroe County Board of Education) stipulated that harassment becomes discriminatory conduct for which schools are liable only when it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”

Susan Kruth, staff attorney at the indefatigable Foundation for Individual Rights in Education (FIRE), a non-partisan organization defending the First Amendment on American campuses, has explained why the university in the Yik Yak case did nothing wrong.:

Universities should respond to true threats and to serious allegations of sexual harassment, and they can provide non-punitive resources to people who encounter offensive speech. But to the extent that remarks are merely sexist or offensive, a public university must recognize that such language is protected under the First Amendment and decline to take unlawful steps to censor it. Throughout their complaint, the plaintiffs conflate alleged threats and a pattern of conduct that they claim deprived them of educational benefits with remarks or behavior that made them uncomfortable.

In commenting on the lawsuit recently, another FIRE staffer, Communications Manager Daniel Burnett, cited the 2003 Supreme Court case Virginia v. Black, which defined  “true threats”—valid  exceptions to the First Amendment–as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

However, because courts have regarded intimidation as a type of true threat, it becomes advantageous for complainants to assert that they indeed were placed in fear of bodily harm or death. These magic words then set in motion a series of potentially draconian consequences, with the alleged perpetrator usually denied due process as schools, trying to save themselves from lawsuits or perhaps joining in with current campus orthodoxies, cave in to complainants in short order.  Ironically, it is only when sued by those charged with such offenses that universities are likely to rediscover the beauties of First Amendment protections.

A further irony of the current campus climate is that it is not speakers who incite the audience to violence but rather outraged students who threaten speakers and their supporters with violence. Yet universities are acting as if this potential for violence is a reason to prevent unpopular views from being heard – a perfect example of the power of a “heckler’s veto” to silence speakers in an arena where free and full discussion ought to be promoted: the university.

The result is that campus speech censors have a positive incentive to overreact.  They become agitated, claiming they feel unsafe, and threaten violence—in response to which administrators and even campus police rapidly capitulate.  And in the downward spiral that has been played out on numerous campuses over many years now, students ironically demonstrate ever greater physical and verbal aggression as they insist on their discomfort, vulnerability, and fear.

FIRE’s Susan Kruth has highlighted the role of the Office of Civil Rights (OCR), charged with enforcing Title IX, in promoting a redefinition of sexual harassment and sexual assault so broad and vague that it covers mere “speech or conduct of a sexual nature,” which in practice means whatever anyone finds offensive. The low standards encouraged by the OCR, in conjunction with colleges’ natural aversion to lawsuits, have resulted in the campus environment by now familiar to us all, even though these low standards would never carry the day in a court of law.

Apart from the unconstitutionality of such broad definitions, it is well worth asking whether we really want to live in a society where you can’t even make a sexual allusion or tell a joke, where any thoughtless, critical, or offensive comment—not to mention an unpopular viewpoint–can be construed as harassment.  According to many would-be censors, the answer is yes, provided it’s the other guy whose speech is to be curtailed, never mine.

One has to marvel at the touching innocence of so many American students. Lacking experience of what it’s like to live in a society in which some speech is prohibited ostensibly for the greater good, they apparently have little imagination of what such a society would entail. It seems not to occur to them (or to their faculty and administrative abettors) that the very vagueness of what could cause offense means ever more words will need to be avoided, just to be on the safe side.  Yet numerous accounts exist of all the countries around the globe where speech is or has been curtailed by the state and its institutions, with frightening and violent consequences.

It’s an old observation, but nonetheless routinely ignored by campus vigilantes.  More than twenty years ago, for example, FEMISA, an electronic list devoted to feminism, gender, and international relations, was discussing kicking out some men who posted comments women on the list didn’t like.  I was among the very few who argued on that list for the importance of free speech, which–in that particular context–meant tolerating the messages of male contributors whose words were making them unpopular.

Excluding those whose views we did not like, I said, would soon enough lead to instituting censorship, public humiliation, shunning, ganging‑up‑on, etc., so as to protect the feelings and views of the rest.  I contended that even men thought to express obnoxious views should not be struck from the list, and that intolerance of ideas we dislike can quickly move into the prohibitory mode as if the people with whom we disagree had no right to speak freely.  This was a dangerous turn, as I knew then and have had confirmed numerous times since.

Kate Zhou, a political science professor originally from China, sent a long message to FEMISA supporting my position and explaining her own:

I am a feminist from China. For many years, sexist language was banned by the Chinese state (at least in the urban public sphere). Urban Chinese women were very much “free” from sexist verbal attacks. Many women including myself were willing to give up freedom for some degree of protection and security.  When everyone lost the freedom to speak, women’s independent voice was also gone. When women’s voices were silenced, women suffered.

 Yes, we did not have to be bothered by sexist language and pornography. But we could not complain that we had to line up two or three hours for basic food. We had to take less interesting work because we had to take care of the family.  It was not politically correct to complain about the double burden.

Is it clear to feminists that there has been no feminist movement in those countries that practice state censorship? My experience in China seems to suggest that women are often victims of any kind of censorship. As a feminist, I believe that women have the ability and power to defend their interests if given a chance. We should welcome complex and diversified debates. Difficult and complex debates help to train us. If we try to shut someone up because we dislike what he has to say, we just confirm our weakness and sexism.   [Kate Zhou, May 5, 1995].

Not surprisingly, FEMISA did not heed this sound advice. Instead, after more comments from argumentative men –who in some cases merely pointed out that women routinely posted hateful language about men, while men’s objections and rejoinders were treated as intolerable flames–the list owners barred various men from posting and moved the entire list onto “moderated” status, the better to control its discussions.

A similar case affected me directly. For nothing more than disagreeing with the predominant views on certain subjects on the Women’s Studies E-mail List (WMST-L), I (unlike virtually all the other 5,000 subscribers to that list) was placed on “moderated” status for ten years, so that no message of mine could be posted without first being vetted by the list’s overseers.  The result was, of course, as intended: Not eager to waste my time, I participated ever less on the list, to the point that my contributions decreased to almost zero. Why should anyone on the list have to be upset by divergent viewpoints?

Now, however, entire institutions do this dirty work for fragile feminists and others demanding protection from the verbal slings and arrows of people who dare voice dissenting views.  The state and its apparatuses must, of course, keep its grubby hands off our bodies, but please, please, let it control words, gestures, even thoughts.

We’ve come a long way, baby.

Obama OCR Moves to Deter Any Trump Reform

As the Obama administration draws to a close, opponents of campus due process have launched an aggressive public relations campaign on behalf of their agenda, lest change comes with a new regime in the White House.

The highest-profile effort came from Joe Biden, who penned an open letter to the presidents of the nation’s colleges and universities urging them to continue to meet the “epidemic” of campus sexual assault. (This is seemingly the only violent crime “epidemic” in American history in which law enforcement is to have little or no role.)

Perhaps the most striking item in Biden’s letter was his assertion that “twenty-two years ago, approximately 1 in every 5 women in college experienced rape or sexual assault. Today, the number is the same.” Setting aside the absurdity of the statistic (which would imply hundreds of thousands of unidentified victims annually, just among college students), this claim amounted to an admission that the admission’s war on campus due process has done nothing to lower the number of sexual assault victims—which, according to Biden, is at the “same” percentage as 1995.

The Vice President did not once mention due process or civil liberties in his letter.

As Biden released his letter, Democratic senators Bob Casey and Patty Murray pressed the incoming Trump administration to retain Obama’s interpretation that Title IX requires schools to use the lowest standard of proof in sexual assault cases, give sexual assault accusers the right to appeal not-guilty findings, and discourage procedures in which sexual assault accusers can be cross-examined about their allegations.

Portraying campuses in the midst of an unprecedented wave of violent crime, the senators contended that “campus sexual assault is a widespread problem affecting millions of college students across the nation.” The senators did not identify the source for their claim that “millions” of college students are affected by sexual assault. Nor did they explain why these “millions” of crime victims should not be an immediate priority of the nation’s police.

Accusers’ rights groups such as Know Your IX got into the act with a social media campaign demanding that incoming Education Secretary Betsy DeVos make no changes to the Obama administration’s Title IX policies. The implicit message: any effort to restore due process or a semblance of fairness to campus tribunals will be denounced as hostile to “survivors.”

But perhaps the most consequential move to retain the war on campus due process came outside of the public eye. On January 4, the Harvard Crimson broke the news that Harvard’s Title IX administrator, Mia Karvonides, was planning to depart her position abruptly. Karnovides had overseen one of the most unfair adjudication systems for campus sexual assault anywhere in the country.

Karnovides’ new position? Enforcement Director at the Office for Civil Rights (OCR), the agency that has served as the center of the war on campus due process during the Obama administration. Her starting date? January 18, or two days before Barack Obama leaves office. It seems unlikely that Karnovides would have accepted the new position if she lacked civil service protections.

The midnight appointment can only be interpreted as placing a key figure in the bureaucracy to disrupt any Trump administration effort to restore a sense of fairness to Title IX enforcement. Will the new administration respond?

The Title IX Mess—Will It Be Reformed?

Since 2011, the federal government has made successful and devastating efforts to undermine civil liberties on campuses. The surprise outcome of the presidential election raises at least the possibility that this illicit campaign, based on a vast extension of Title IX, will be reversed. Thousands of students accused of sexual misconduct but denied due process have been victimized by the frenzy stimulated by the Education Department’s Office for Civil Rights (OCR), and by the unfair procedures that OCR has championed. (Consider events at Amherst or Yale or UVA or Brandeis, for starters.)

College hearings on sexual misconduct are often a travesty of justice. Usually, there is no attorney for the accused, no cross-examination, no discovery, no note-taking, little time for the accused to prepare and often a form of double jeopardy (the accuser can appeal but the accused cannot). Individual universities can broaden the definition of offenses (at Yale “economic abuse” counts as sexual assault) and uninvolved third-party accusations can sometimes launch hearings.

Some comments on what should, and should not, occur:

The Fate of Obama-Era Guidance

President Obama’s two heads of the OCR have ignored the requirements of the Administrative Procedure Act and imposed their dubious interpretations of Title IX without required notice and comment. They never offered a convincing explanation as to why, in part because Congress only rarely pressed them; outgoing OCR head Catherine Lhamon purported to justify OCR’s actions in this exchange with Tennessee senator Lamar Alexander, but only revealed herself to be ignorant of congressional authority.

Related: How the Feds Use Orwell to Apply Title IX

But the arrogance of Lhamon and her predecessor, Russlynn Ali, means that the 2011 “Dear Colleague” letter—and OCR’s even more troubling 2014 guidance, which suggested that OCR’s imaginative interpretation of Title IX could trump the constitutional protection of due process promised to all students at public universities—can be withdrawn without going through the notice-and-comment process.

Given the Access Hollywood tape, it might well be politically impossible for a Trump administration to simply withdraw the 2011 and 2014 “guidance.” But another avenue for action exists, including the FIRE-orchestrated lawsuit filed by a former University of Virginia student and by Oklahoma Wesleyan University. The new administration could easily enter into settlement negotiations for the lawsuit and concede the inappropriateness of issuing new regulations on all colleges and universities outside the APA’s requirements.

If this doesn’t occur, Congress becomes all the more important. The two people to watch are Lamar Alexander and Oklahoma Republican James Lankford. The Oklahoma senator issued an encouraging statement the day after the election, noting that the Education Department had “used Dear Colleague letters and guidance documents to mandate policies for schools without adhering to legally required regulatory processes. It is extreme overreach at agencies like the Department of Education that the American people repudiated in this election. I will push our new Republican-led Washington to put a stop to this abuse and restore proper regulatory and guidance processes to the federal government.”

Related: How Title IX Became a Policy Bully

Accusers’ rights organizations seem to have recognized that, at the very least, the anti-due process agenda of the current OCR might be discontinued in the next administration. And so, as the Chronicle recently reported, they’ve ratcheted up pressure on colleges to maintain the current unfair procedures that the Ali/Lhamon-led OCR helped to establish.

Yet even the most extreme of the activist groups—Know Your IX—has conceded that colleges are obliged to provide “fair” processes. (The group’s founders, Alexandra Brodksy and Dana Bolger, have defined “fair” in Orwellian terms, but they nonetheless use the language.)

Early in her tenure, Russlynn Ali made clear that the new OCR would welcome Title IX complaints from accusers angered at their college having returned not-guilty findings, or simply not rendering a guilty finding quickly enough. The new OCR could make clear that given the manifest unfairness of most college disciplinary systems on sexual assault matters, it would welcome complaints from accused students, to give the federal government a chance to counteract the improper pressure to keep disciplinary systems unfair. The resolution of the pending Title IX complaint against Brandeis—in a case that was the subject of the piercing opinion by Judge Saylor—could provide a template.

Along these lines, resolution agreements from OCR should restore earlier principles (from the Bush II administration) that colleges aren’t obligated to reinvestigate claims where a criminal complaint has been filed; and that colleges aren’t obligated to investigate allegations that occur off campus.

Distractions

Over the past five years, only a handful of politicians have paid any attention to the issue of campus fairness; as Christina Hoff Sommers presciently noted, “due process has no lobby.” Scores of GOP legislators and governors, on the other hand, rose up as one against OCR guidance regarding bathroom policies for transgender school kids.

For advocates of campus due process, then, the great fear is this: given Republican priorities, the new administration will focus its OCR reform agenda on eliminating protections for transgender public school students—a move that will receive fierce political resistance—and therefore will decide not to address the campus due process issue at all.

Related: The Feds Now Run a Bureaucracy That Regulates Sex

Any comment on a Trump-led OCR has to address what was avoided. While OCR under Obama was disastrous for due process, the crusade always had a surreal element to it. Obama, after all, was formerly a constitutional law professor, and also someone who was willing to stand up for campus civil liberties (albeit only in the free speech context). Even as his administration eroded due process rights for accused students, there was always the chance that a President with Obama’s beliefs would recognize he had gone too far.

No chance would have existed for such a course correction under Hillary Clinton, had she been elected. (Full disclosure: I am a Democrat who donated to, and voted for, Barack Obama in 2008 and 2012. My only federal political donations in 2016 went to Jason Kander, who narrowly lost in the Missouri Senate race.) To the extent that Clinton had any consistent beliefs, they revolved around a fierce connection to gender-based identity politics. And there was no doubt as to how these beliefs would have translated on campus.

Clinton’s campaign began with an official policy toward campus sexual assault—that all accused students who could not prove mistaken identity were guilty since all campus accusers had a “right to be believed.” Even Obama’s OCR, as extreme as its approach toward campus due process had been, never adopted such a policy. Clinton withdrew the line only after she was asked how it would apply to her husband’s accusers, but there seems little doubt that she would not have granted the same degree of skepticism for students accused of sexual assault on campus.

It also seems likely that a Clinton OCR—perhaps with Lhamon staying on for a second stint in charge of the agency—would have more aggressively targeted campus free speech. The University of Montana “blueprint” (imposed by OCR and the Justice Department) supposedly was abandoned after a public outcry. But its basic principles were quietly extended to the University of New Mexico and could have formed a national template under four years of Clinton.

In a Clinton presidency, Title IX would have been used as a sword against fairness and due process. If nothing else happened last Tuesday night, that outcome appears to have been avoided.

Yale Defends Its Star Chamber Hearings

The Obama administration, acting through the Office of Civil Rights, has made a terrible mess out of sexual misconduct hearings on our campuses, but it did one good thing without thinking much about it: it targeted one university—Yale—for regular reports on how it dealt in sexual assault hearings.

The reports, released by Deputy Provost Stephanie Spangler, are bare-boned and hardly meant to be informative, but they have included enough information to demonstrate the fundamental unfairness of Yale’s procedures and the witch hunt atmosphere that has permeated the campus. Perhaps for this reason, OCR has avoided instituting a reporting requirement like Yale’s on any other institution.

Recently, Yale’s dubious policies came under higher-than-usual scrutiny, thanks to a perceptive Wall Street Journal op-ed from Jennifer Braceras—who correctly noted that the accused enjoyed far more rights under the notorious Star Chamber than they do in Yale’s sexual assault disciplinary tribunals. Jack Montague, Braceras noted, discovered first-hand just how unfair Yale’s procedures could be.

He had no right to direct cross-examination, no right to have a lawyer fully participate in the process, and received a judgment from a “trained” panel that seemed predisposed to find guilt. He also was charged in seeming violation of Yale guidelines, which (as Spangler explained at the time) did not apply to cases like Montague’s, where the accuser declined to file a complaint.

Braceras’ op-ed generated a response, from Yale professor David Post, an aquatic ecologist who chairs the University-Wide Committee on Sexual Misconduct (UWC). Post deemed Braceras’ comments an “affront” to him, noted that many Yale cases end with no punishments, and gushed about “Yale’s multilayer process,” which “allows parties to submit and respond to evidence, engage legal counsel, submit questions for a hearing panel to ask the other party and file an appeal to the university’s highest levels. Each complaint is investigated by an outside fact-finder.”

According to Professor Post, “Yale’s process is honest, fair, transparent and respects privacy.”

First of all, here’s a statement on the Montague lawsuit, offered to the Hartford Courant, by a Yale public relations staffer: “Yale always respects the privacy and confidentiality of all students involved in a disciplinary process. Yale’s procedures for addressing allegations of sexual misconduct are thorough and fair. Allegations are investigated by an impartial fact finder, heard by five trained members of the Yale community, and decided by the accused student’s dean.

Throughout the process, all parties have advisers, which can be legal counsel, and they can appeal a decision.” Previous Yale statements also had stressed the fact that not all accused students are found guilty (citing the same statistics as Post), in following the outlines laid out by Judge Furman’s opinion in the Columbia case. Apparently, no one told Post that the Second Circuit had overruled Furman.
The remarkable similarities between the earlier Yale publicity statement and Post’s letter—which ostensibly contains his own words, and reflects his own thinking, not that of a Yale public relations officer—raises some questions about the professor’s “honest[y].”

As to the other qualities of Yale’s procedures: I’m sure that Montague—like Patrick Witt before him—was surprised to discover Yale’s commitment to respecting “privacy.” Indeed, after Montague left the team, Yale’s Women’s Center released a statement “speculat[ing]” that “it seems that a survivor felt that coming forward was a viable option and that they got the decisive outcome that they likely fought hard for.”

The claim of transparency also intrigues. This assertion was the major difference between Professor Post’s letter and the earlier statement from Yale’s p.r. office (which, wisely, made no mention of the concept). It’s not clear why Professor Post added the claim since Yale’s process is anything but transparent. It’s closed to the public. The university has refused to release the “training” all UWC members receive. And Yale makes no promise to share with the accused students all the evidence the purportedly independent “fact finder” uncovers.

As for the claim of Professor Post—and Yale’s spokesperson—that the university’s process is “fair”: even as last year’s protesters demanded a more “diverse” English fare, it seems that Orwell is alive and well on the New Haven campus.

What the Feds Have Done to Colleges and Schools

The Obama administration has repeatedly violated civil liberties on campus. The Education Department’s Office for Civil Rights (OCR) has been the chief culprit, but the Department of Justice has played a role too. They have attacked free speech, demanding that school officials censor politically-incorrect speech. They have also pressured colleges to stack the deck against students accused of sexual harassment or assault by denying them the right to due process. The Obama administration has violated the Constitutional guarantee of equal protection by demanding racial quotas in school discipline and turning a blind eye to campus racial violence against whites. It also has shown a contempt for religious freedom and the due process rights of colleges themselves.

  1. The Attack on Free Speech

The Obama administration has told colleges investigated under Title IX — such as the University of Montana — to classify all “unwelcome” sexual conduct or speech as “sexual harassment.” It did so even though this violates free speech, and even though courts have never defined sexual harassment that broadly. In 2013, a political appointee in the Obama Justice Department and an official in the Education Department’s Office for Civil Rights (OCR) demanded that the University of Montana impose a sweeping campus speech code treating all “unwelcome” speech about sexual issues as “sexual harassment,” even if only a hypersensitive person would have objected (like a student offended by a classmate or professor discussing how AIDS is transmitted).

Education writers like Joanne Jacobs pointed out that this definition of sexual harassment would effectively brand every student a sexual harasser (like a student asking another student out on a date). It also would ban jokes, cartoons and discussions that only the most sensitive people find offensive, at a huge cost to free speech.

The Obama administration’s letter to the University of Montana claimed that sexual speech need not even create a “hostile environment” to be harassment. But a federal appeals court rejected that argument in DeJohn v. Temple University (2008). It ruled that a college harassment policy violates the First Amendment if it defines as sexual harassment speech that does not “objectively” create a “hostile environment.” Even if it does create a hostile environment, the sexual speech still “may be protected” by the First Amendment if it discusses political or social issues.

In September 2016, an OCR attorney encouraged unwarranted sexual harassment complaints based on constitutionally-protected speech in yet another way. She told Frostburg State University that its sexual harassment policy was wrong to determine whether the conduct was harassment based on the “perspective of a reasonable person.”

This opened the door to sexual harassment complaints by hypersensitive students who seek to silence discussion of sexual issues by classmates. Under broad campus “harassment” codes, students have been investigated or punished merely for expressing commonplace opinions about sexual and racial issues, such as criticizing feminism or affirmative action.

As Reason Magazine noted, in rejecting the reasonable person standard, the OCR official was “effectively saying that colleges should base their decisions on the perspective of an unreasonable person.”  That flouted Supreme Court rulings, which the Daily Caller notes have long applied “a reasonable person standard to decide whether sexual harassment occurred.” For example, in 2001, the Supreme Court overturned a ruling against the Clark County School District, ruling that a “reasonable person” could not “have believed that [a] single incident” of offensive remarks amounted to harassment.

The Obama administration has also told grade schools to violate the free-speech rights of their students. In an October 26, 2010 “Dear Colleague” letter to the nation’s school boards about bullying, the Office for Civil Rights rewrote the legal definition of sexual harassment to reach homophobia and offensive speech outside of school.

It claimed that “harassment does not have to . . . involve repeated incidents” to be illegal under Title IX, but rather need only be “severe, pervasive, or persistent” enough to detract from a student’s educational benefits or activities. It also targeted speech outside of school, claiming that harassment includes speech, such as “graphic and written statements” on the “Internet” and elsewhere.

Disturbingly, it also suggested that speech could violate Title IX even if it was not “aimed at a specific target.” Banning academic speech not aimed at the complainant creates enormous free-speech problems.

A federal appeals court relied on the First Amendment in dismissing a racial harassment lawsuit by a university’s Hispanic employees against a white professor over his recurrent racially-charged anti-immigration emails. In its ruling in Rodriguez v. Maricopa County Community College (2010), the court noted that the messages were not “directed at particular individuals” but rather aimed at “the college community” as a whole.

OCR’s attempt to restrict off-campus speech also went well beyond its jurisdiction under Title IX. Courts have held that Title IX does not hold schools liable for even serious off-campus misconduct in decisions like Roe v. Saint Louis University (2014), which rejected a lawsuit over an alleged student-on-student rape.

OCR’s pressure on colleges to regulate off-campus conduct and speech led to a speech-chilling investigation of Professor Laura Kipnis that lasted for months. She was investigated under Title IX for her essay in the Chronicle of Higher Education, “Sexual Paranoia Strikes Academe” (which hypersensitive students claimed offended them and constituted sexual harassment) and her subsequent statements defending herself on Twitter (which the students claimed constituted “retaliation” in violation of Title IX, even though she did not identify them by name).

OCR’s sweeping definition of “sexual harassment” is at odds with the Supreme Court’s decision in Davis v. Monroe County Board of Education (1999), which held that to be illegal under Title IX, sexual harassment must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

Furthermore, the Supreme Court explained that the requirement of both severity and pervasiveness means that a lawsuit cannot be based solely on a “single instance” of “severe” peer harassment — contrary to OCR’s “Dear Colleague” letter about bullying, which claimed harassment does not have to “involve repeated incidents” to violate Title IX.

The Obama administration expects colleges to students’ lives, even off campus. It has told colleges to investigate students for sexual harassment or assault even when their allegedly victimized partner does not want any investigation. It instructed the University of Virginia to investigate further even when the accused has already admitted guilt (even though that could needlessly force a victim to relive her trauma) and even in “cases in which students chose not to file a formal complaint” or even to pursue an “informal resolution process.”

  1. Due Process Undermined

The Administration has also stacked the deck against people accused of sexual harassment or assault in campus disciplinary proceedings. For example, in Title IX investigations, it has required that colleges impose “interim measures” against accused students before they ever receive a hearing on the charge against them, measures that can include expulsion from a dorm and classes shared with the accuser. It perversely faulted Michigan State for not investigating a false complaint fast enough, even though the complainant didn’t want a college investigation at all, and it suggested the University might have to offer the false accuser academic “remedies.

In its April 4, 2011 Dear Colleague letter to the nation’s colleges, OCR instructed to colleges to restrict cross-examination, even though the Supreme Court has declared that cross-examination is the “greatest legal engine ever invented for the discovery of truth.” It also ordered colleges to abolish the clear-and-convincing standard of evidence that was once the norm in college discipline, recommending instead the far weaker “preponderance of evidence standard (50.001 percent certainty).

OCR also has recently required some investigated colleges (such as Harvard and SUNY) to conduct “individual complaint reviews” for all allegations in past academic years to see if the college “took steps” against harassment in each case. That creates the risk of students being investigated all over again for an offense the college previously found them not guilty of, much like double jeopardy.

  1. The Attack on Equal Protection

The Obama Justice and Education Departments have pressured school districts to adopt racial quotas in school suspensions, falsely claiming that it generally violates Title VI of the Civil Rights Act to suspend black students at a higher rate than whites. Such racial quotas have led to increased violence and disorder in some large urban school districts.

This pressure flouts federal court rulings. A federal appeals court ruled in People Who Care v. Rockford Board of Education (1997) that schools cannot use racial quotas in discipline, striking down a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline.”

Yet, “Hillary Clinton has called for Education Department’s Office for Civil Rights to crack down on school districts that discipline higher percentages of black students, and has advocated further increasing OCR’s budget to increase its muscle over school districts.”

Contrary to the assumption of Clinton and the Obama administration, school officials are not racist against black students: black students’ higher suspension rates simply reflect higher rates of misbehavior among blacks.

As Katherine Kersten wrote months ago in the Minneapolis Star-Tribune, black students’

discipline rate is higher than other students’ because, on average, they misbehave more. In fact, a major 2014 study in the Journal of Criminal Justice found that the racial gap in suspensions is “completely accounted for by a measure of the prior problem behavior of the student.” That problem behavior can manifest itself in other ways. Nationally, for example, young black males between the ages of 14 and 17 commit homicide at 10 times the rate of white and Hispanics of the same ages combined.

The Obama administration has also turned a blind eye to racial discrimination and harassment committed against white students on campus. One example is when minority students at Berkeley racially harassed whites, prevented them from studying, and blocked the access of white students to key areas of campus while letting minority students through. Berkeley’s administration did nothing, even though it was all caught on videotape, witnessed by nearby campus police, and reported on by Fox News, the Washington Times, and Reason Magazine.

The Obama administration likewise did nothing, even though the White House has weighed in on far more trivial campus racial controversies that offended minorities (such as praising protests against Halloween costumes minority students considered “cultural appropriation,” and praising the expulsion of white Oklahoma students for a disgusting racist chant that law professors said was constitutionally-protected speech, but which the college president said was “racial harassment” of minorities who learned about it later). It did nothing, even though the Obama Education Department has investigated colleges for sexual harassment based on press reports, even when the purported victim did not complain to the Education Department, and did not even want a Title IX investigation. It ignores such racial discrimination, even though federal courts have ruled that civil rights laws forbid racial harassment and violence aimed at whites based on their race.

  1. The Attack on Colleges’ Own Religious Freedom and Due Process Rights

The Obama administration has selectively applied regulations in ways that destroy trade schools and for-profit colleges. For example, it forced the shutdown of ITT Tech, which had successfully operated for 50 years, displacing 40,000 students in the process. Even the liberal Washington Post, which has not endorsed a Republican for President since 1952, viewed this as a violation of due process. As the Post put it,

“What is so troubling about the department’s aggressive move — which experts presciently called a death sentence — is that not a single allegation of wrongdoing has been proven against the school. Maybe the government is right about ITT’s weaknesses, but its unilateral action without any semblance of due process is simply wrong. ‘Inappropriate and unconstitutional,’ said ITT officials. Such unfairness sadly is a hallmark of the Obama administration policy toward higher education’s for-profit sector.”

Meanwhile, the Administration continues to subsidize and provide financial aid to low-quality colleges that have far lower graduation rates and salaries for graduating students than ITT.

The Obama administration has also refused to respect the statutory and constitutional rights of religious schools and colleges. For example, on June 21, it rejected a “right of conscience” complaint by religious orders and schools who objected to the State of California’s requirement that their health insurance plans include coverage for elective abortions. In so doing, it thumbed its nose at the Weldon Amendment, which Congress passed to prevent just such coercion.

That provision withholds federal funds from states that require health care entities to “provide, pay for, provide coverage of, or refer for abortions.” As lawyers for the Alliance Defending Freedom noted, the Obama administration’s action allowed California to illegally regulate the healthcare coverage of even priests and nuns, and allowed California to get away with a “blatant violation of the law.”

Feds Lurch Toward Due Process in a Campus Sex Case

In a first for the Obama-era Office for Civil Rights, the Education Department’s OCR found in favor of an accused student who filed a Title IX complaint against Wesley College. At the least, after five years, we’ve finally found a case whose facts were so outrageous that even an OCR notoriously indifferent to due process couldn’t justify them.

The letter has received extensive coverage; the facts of the case are tawdry. At a fraternity in the Delaware school, two students had sex. Unbeknownst to the female student, the intercourse was streamed and witnessed (allegedly) by two other members of the fraternity. Two other students found out (from another fraternity member who had heard about the affair), went to the college, and an “investigation” ensued. Within seven days, all three of the accused students—the male fraternity member who had sex, and the two who allegedly watched—had been expelled.

The college violated multiple procedures in its handling of the case. It didn’t give the accused student a clear sense of the charges against him. It didn’t tell the student that the hearing (which would recommend his expulsion) actually was a hearing—the student thought it was a preliminary conference, so he had no witnesses to testify on his behalf. The college also gave the student an interim punishment—suspension—before the hearing, even though at that point of the “investigation,” the student had spoken to no one at the college about his side of the story.

Although the OCR letter doesn’t take a position on the matter, it suggests that the case  should never have been brought against the accused student at all. Wesley’s policy suggests that charges shouldn’t be brought against a student in a case without an accuser. In this instance, the accuser told Wesley administrators that though she hadn’t consented to the streaming of the intercourse, she didn’t believe the accused student had any role in the planning or execution of the event. Yet Wesley went forward with charges anyway.

The entire investigation and adjudication took a week. OCR investigators found that in 10 or the 12 most recent Title IX cases at Wesley, the matter had been resolved “in a matter of days.”

Though Wesley was the subject of the Title IX complaint, the real target could have been OCR itself. As FIRE’s Will Creeley has noted, “Given the many similarities between the procedural failures found by OCR here and those alleged by accused students in lawsuit after lawsuit over the past few years, chances are that Wesley College’s failings are far from unique.”

For instance, in its discussion of the threshold for imposing interim punishments, the resolution letter noted that “while a school must assess whether the presence of an accused student threatens the safety of individuals within the school community, a sufficient level of inquiry–that is not here evident–must be undertaken in determining the appropriateness of interim suspensions.” Yet nothing in OCR guidance over the past five years would have suggested that colleges should consider the rights of accused students when imposing interim punishments. Will OCR now retreat from its enthusiastically championing of the interim punishment approach for all students accused of sexual assault?

Similarly, the resolution letter noted that “OCR has concerns, however, that the College’s expedited investigation of complaints of sexual harassment and sexual violence may have compromised the equity of such investigations.” Yet nothing in OCR guidance over the past five years would have suggested that colleges should refrain from lightning-fast “investigations” and adjudications—indeed, OCR has been relentless in its pressure that colleges should speed things up. (Recall the Peter Yu case at Vassar as a particularly egregious example of how lightning inquiries frustrate pursuit of the truth.) Will OCR now abandon its pressure tactics on speed of inquiries, and encourage colleges to choose timeframes that allow students accused of sexual assault—who are, effectively, required to prove their innocence—enough time to prepare their case?

Finally, the letter is a striking testament to OCR’s hypocrisy. The only case specifically investigated involved treatment so unfair to the accused student that even OCR said the judgment had to be invalidated. Yet the general recommendations in the letter veered in the direction of changing procedures to increase the chances of guilty findings (more “training,” for instance, to remove a lack of “clarity” regarding the preponderance of evidence standard) or ensuring that more cases are adjudicated (fewer employees designated as eligible for confidential reporting). OCR expressly criticized the existing policy (which Wesley ignored in the case that prompted the complaint) of not having cases go forward without an accuser.

So, in short, while this case will need to be re-tried to allow the accused student to defend himself, the actual outcome of this letter is that more accused students at Wesley likely will be subjected to unfair procedures down the road.

Let’s Rein in the Lawless Office for Civil Rights

John Fund, writing in the National Review last week, drew attention to the vote in Congress last year to increase by seven percent the $100 million budget of the Office for Civil Rights (OCR) in the Department of Education. Fund is especially critical of the Republican Congressmen whose vote seemed to reflect bizarre indifference to OCR’s role in creating a destructive regime of progressive ideology. Lacking statutory authority for many of its actions, OCR resorted to extras-procedural maneuvers such as “Dear Colleague” letters that superficially offer only “advice,” but are in reality backed by a hard threat of withdrawing federal funding from schools and colleges that do not obey.

OCR is notorious for its decisions in the last few years to lower the standard of evidence needed to convict individuals accused of sexual assault; to expand dramatically the definition of sexual harassment; to eviscerate due process for the accused; to transfer to Title IX coordinators vast new powers; to collapse the functions of investigator, counselor to both complainant and accused, judge, jury, and enforcer into a single extra-legal office; and to invent the new category of transgendered rights in a novel extension of Title IX of the Higher Education Act.

The National Association of Scholars has repeatedly called for OCR to desist from this crypto-regulatory assault, or, failing such a change in course on the part of OCR, we have called for Congress and presidential candidates to take the lead by announcing their intention to rein in or even abolish the rogue agency. Our statements include “How the Next President Can Fix Higher Education,” “The Office for Civil Rights Overreaches on Transgender Mandate,” and “The Feds Make a Mess of Sex and Gender.”

We join John Fund in deploring the decision of Congress to reward OCR’s egregious behavior with even more funding. Last year’s seven percent increase is not the end of the story. Fund cites Senator Dean Heller (R-NV) as one of 22 senators who proposed in May 2016 increasing OCR’s budget by 28 percent. That idea collapsed when OCR invented out of thin air its new “Dear Colleague” standard for transgendered bathrooms, locker rooms, and showers, but even after that Republican senators have supported a three percent increase in OCR’s budget.

Congress operates in mysterious ways. We might charitably guess that conservative legislators have struck some deal with their progressive colleagues to the effect that the spigot for OCR will continue to flow provided some project favored by conservatives is also funded. NAS is not close enough to the corridors of power to form a close guess as to why leaders elected to protect individual rights and liberties and the rule of law would be willing to cast crucial votes in favor of a lawless regime of identity-group authoritarianism.

NAS has an additional interest in these developments. As Fund points out, Gail Heriot along with Peter Kirsanow wrote a long letter to the chairmen of the Senate and House Appropriations Committees, Thad Cochran and Hal Rogers. The letter drew attention to OCR’s misbehavior and called on Congress not to increase OCR’s budget. Heriot and Kirsanow serve on the U.S. Civil Rights Commission, and Heriot is also a member of the board of directors of the National Association of Scholars.

Not only did the appropriation committees fail to heed the Heriot-Kirsanow counsel, but the Senate took the gratuitous step of adding to its budget report a small measure slapping them down by directing them not to send any more letters on U.S. Civil Rights Commission letterhead.

We at the National Association of Scholars deeply regret the decisions by Congress to enable the continuing mischief by OCR. There have been numerous expressions of outrage by members of the public and by institutions at OCR’s power grabs and poor judgment. We believe that outrage is warranted and that members of both parties in Congress should act to curtail OCR’s self-granted license to issue rules that lack any legitimate basis in law. We also deplore the Senate’s treatment of Gail Heriot and Peter Kirsanow who, more than any other Civil Rights Commissioners, have paid fair-minded attention to a new swarm of abuses stemming from OCR’s aggressive political agenda.  Their rights should be restored in the next legislative action on these matters—which we hope will also include a substantial decrease in funding for OCR.

Reprinted from the National Association of Scholars