Tag Archives: Office of Civil Rights

The Office of Civil Rights Is Still Out of Control

As it left office last year, Barack Obama’s administration made one final move in its crusade against campus due process: it requested a massive increase—$30.7 million, or 28.7 percent—in funding for the Office for Civil Rights (OCR). The previous year, at a time when discretionary federal spending was barely rising, the office had received a 7 percent increase.

The Trump “skinny budget” contained an overall cut for the Department of Education, but included no specifics about OCR (or any other Education Department office). Based on its performance of the last six years in higher education, OCR deserves a dramatic reduction in its funding—rather than the huge boost it desires.

The Obama-era request envisions OCR hiring 157 new staff investigators. (OCR had asked for 200 new employees in fiscal year 2016 and received funding that allowed around 50 additional hires.) At a time of limited hiring by the federal government, why would OCR have demanded such a massive personnel increase?

A clue came in a recent article from BuzzFeed’s Tyler Kingkade. Over the past six years, Obama OCR heads Russlynn Ali and Catherine Lhamon—joined by grassroots accusers’ rights organizations such as Know Your IX—encouraged campus accusers to file Title IX complaints against their institutions.

These filings served multiple purposes for Lhamon and Ali. First, each Title IX complaint would give OCR jurisdiction to investigate individual universities, at which point the federal government could impose a “voluntary” resolution letter on the affected institution. These letters lock into place procedures for that school, even if the Trump administration eventually withdraws the Dear Colleague letter.

Second, Title IX complaints provided an opportunity for the Obama administration to stoke the public frenzy around the purported campus rape epidemic. In a highly unusual move, OCR publicized the identities of schools under investigation. This approach pressured the affected institutions to settle quickly while also leaving the impression that many of the nation’s elite institutions were indifferent to the large number of rapists in their midst.

Finally, the complaints provided a rationale for ever more frantic demands for more funding from Congress. As the 2016 budget justification explained, complaints addressing “sexual violence” were “both more complex and more high profile,” and “inadequate staffing” led to intolerable delays in handling the questions.

The resulting surge from a couple of dozen to hundreds of Title IX complaints against colleges and universities might have provided more than enough work for OCR. But, incredibly (and without announcing the shift publicly), Lhamon seized even more authority. According to Kingkade, who would have had no reason to misstate the claim (indeed, his reporting has consistently defended the accusers’ rights cause), Lhamon “expanded all Title IX sexual violence investigations to become institution-wide, so investigators reviewed all cases at a school rather than just the cases that sparked federal complaints.”

To translate: on her way out the door, Lhamon wanted to hire nearly 200 permanent employees, who would work under a true believer (Harvard’s ex-Title IX coordinator), because she had decided OCR would investigate not merely the complaints it received but thousands of other cases, even though no accuser had filed a Title IX complaint about any of these individual cases. On this matter, as on virtually all OCR-related matters during the Obama years, no sign of congressional oversight existed.

It would be difficult to imagine a more wasteful use of federal funds. Reducing OCR’s budget would help to bring the rogue office back under congressional oversight, and likely would force the new OCR head to (at the very least) temper Lhamon’s investigatory zeal.

The new administration will need to make key decisions not only on OCR’s funding level. Trump’s Education Department continues to enforce the flawed 2011 and 2014 guidance for sexual assault cases, which required colleges to use a preponderance of the evidence standard, discouraged cross-examination, instituted double-jeopardy regimes allowing accusers to appeal not-guilty findings, and urged subordinating public university students’ constitutional rights to due process to OCR’s interpretation of Title IX.

The slowness with which Trump has filled executive appointments has maximized the power of Obama holdovers. This situation is especially problematic with OCR, whose current head of enforcement, former Harvard Title IX director Mia Karvonides, dropped into her civil service position a mere three days before Trump was sworn in as president. Karvondes’ rushed appointment leaves the impression that the outgoing administration intended to maintain the unfair Obama rules regardless of what Trump did. Every day that passes without Trump staffers in OCR allows Karvonides to implement her agenda unchecked.

Finally, the Jeff Sessions-led Justice Department must decide to whether to defend Obama’s OCR overreach. The key lawsuit challenging the 2011 Dear Colleague letter—a case from the University of Virginia, which remains pending—was coordinated by FIRE, and filed by lawyer Justin Dillon. The UVA adjudicator, a retired judge, admitted that “there were signs” that the accuser “may have been capable of effective consent,” but nonetheless found the student guilty, in a case that she deemed “very close” and “very difficult.”

The most recent filing in the case came around a month before Obama left office. The Justice Department urged dismissing the student’s complaint on grounds that OCR policies are, basically, set in stone. Since UVA “knows” that “OCR considers the preponderance of the evidence standard to be the only standard consistent” with Title IX, the university would have no choice but to maintain its unfair procedures under threat of punishment from federal bureaucrats—even if a federal court overturned the Dear Colleague letter. Sessions used the excuse of a pending legal fight to reverse Obama’s era Title IX guidance designed to protect transgender teens. Will he defend the Dear Colleague letter, which actually harms accused students?

Moving beyond the Obama-era’s OCR abuses will take years. But Congress exercising the power of the purse is a needed first step in the process.

The “Jackie” Interview in the UVA Fake Rape

In the suit against Rolling Stone by University of Virginia dean Nicole Eramo over the magazine’s false rape story, the trial rolls along, with the two sides offering a narrow band of arguments: according to Rolling Stone and former reporter Sabrina Rubin Erdely, our nation’s campuses are teeming with sexual assaults, beset by a “rape culture,” and the UVA administration was indifferent to the student victims in its midst. (Even the Office for Civil Rights has said so, Rolling Stone lawyers have argued.)

It is difficult, therefore, to have sympathy for either party in Eramo’s lawsuit. (Phi Kappa Psi’s lawsuit against Erdely is another matter.) But the Eramo lawsuit has been of extraordinary value in bringing to light the flawed process through which the Rolling Stone article was produced. First came the discovery material, including Erdely’s reporting notes. And now, Charlottesville TV station CBS-19 obtained a 150-minute recording of what seems to have been the first detailed interview between Erdely and accuser “Jackie.”

I posted brief audio excerpts of the choicest elements of that conversation. It occurred in a restaurant; some portions of the audio are of very poor quality.

Erdely comes across as closed-minded, having already decided on her thesis. (Her research notes showed that she began her project by interviewing the anti-due process fanatic Wendy Murphy and the discredited researcher David Lisak.) Jackie, meanwhile, comes across as even more ideologically extreme than Erdely—which is saying something—and not terribly bright. She discusses failing multiple courses during the conversation; how she remained enrolled at UVA is a mystery.

Effects on Lawsuits

The material on this tape would seem to help Rolling Stone in the Eramo lawsuit and badly hurt it in the Phi Kappa Psi lawsuit. Regarding Eramo: One of the dean’s libel claims comes from the article’s claim that she told Jackie that UVA didn’t aggressively report sexual assaults because the publicity would be harmful, since “nobody wants to send their daughter to the rape school.”

Eramo refused Erdely’s request for an interview. But the tape has Jackie claiming that Eramo gave her that feedback (and another campus activist told Erdely the same thing). Furthermore, the tape has Jackie portraying Eramo as corrupt—after saying she didn’t want to get Eramo “in trouble,” Jackie asserted that the actual number of people who reported being sexually assaulted to Eramo was “much higher” than Eramo has reported to her superiors—thereby suggesting that Eramo had violated federal law. Rolling Stone thus can (and, obviously, will) say that it had a seemingly credible source for Eramo’s “rape school” alleged statement.

At the same time, the tape should provide substantial ammunition for Phi Kappa Psi. Erdely made clear that she sees what happened (or in this case, didn’t happen) to Jackie as a “gang rape initiation ritual,” and therefore wanted the article to identify the fraternity. She added that she “want[ed] to get these guys.” Members of the fraternity, Erdely mused later on, personified the “banality of evil,” in that the non-attacker members of the frat were afraid to ask questions, lest they learn too much. Phi Kappa Psi, Erdely concluded, was a fraternity “that might have a culture of gang rape.”

After these quotes—in her own voice—it’s going to be very hard for Erdely to argue that her article didn’t directly target Phi Kappa Psi.  And since the article’s claims were false, that would seem to be very bad for Rolling Stone.

The Agenda

As Ashe Schow has noted, the tape showed that Erdely harbors a strong bias against fraternities. Both Erdely and Jackie also entertained an imagined view in which—as Jackie put it—“nobody wants to talk about” sexual assault on college campuses. (Of course, there are few issues that get talked about more on contemporary elite campuses.) Erdely, meanwhile, envisioned an elite campus culture in which “social capital is more important than people’s safety,” and therefore students were unwilling to help victims in their midst. Again, this seems to be an almost wholly imagined view.

They’re describing, of course, the same campus whose student leadership and voices of student opinion would remain committed to Jackie’s tale even after it had collapsed.

Jackie

The conversation gave a sense of Jackie’s extremist beliefs, her rather unappealing personality—and if Erdely had been at all open-minded, her penchant for tall tales.

She pressed Erdely not to name Phi Kappa Psi in the article, worried that the fraternity members would “hate” her as a result. But she also argued that leaving the identity of the fraternity a mystery would serve a broader purpose of stimulating a witch hunt atmosphere on campus.

If UVA administrators didn’t know which fraternity was the site of the seemingly horrific attack, Jackie said that she “would hope to see” full-scale investigations of all fraternities. Innocent fraternities, Jackie breezily suggested, should welcome such an inquiry, since, after all, “the ones that have nothing to hide won’t be upset.”

Since most of Jackie’s ideas seem to have emanated from what Erdely terms her “club” of campus activists, it would be interesting to know how many of Jackie’s fellow accusers’ rights activists shared this extraordinary conception of fairness. Jackie also saw an extraordinarily dangerous campus she suggested that one in three UVA female students are sexual assault victims.

In justifying BuzzFeed’s decision not to identify Jackie, Tyler Kingkade bizarrely suggests that she might actually be a victim. He incorrectly asserts that “none of the publicly available court documents . . . use[s] Jackie’s full name.” Kingkade then obtains a quote from the Columbia Journalism School’s Steve Coll, co-author of the autopsy that avoided asking hard questions about why the magazine had so badly failed. “She never solicited Rolling Stone to be written about,” Coll said.

The 150-minute conversation, however, showed a figure eager, even joyous, at advancing her narrative. Jackie actively participated in the interview—she seemed to very, very much enjoy talking about herself and her feelings. She suggested multiple other witnesses. She talked about her myriad activities advancing her agenda on campus. And she told Erdely about her eagerness to create “bad publicity” against UVA.

Jackie also came across as someone with significant mental health issues. (Of course, since we now know she’s a liar, her description of her mental health might also be a lie.) She told Erdely that she’d seen at least four different mental health professionals—when she was 14 (to address her poor relationship with her father), as a senior in high school (parental issues, again), at the urging of her mother after the purported campus assault, and at the urging of a friend after the purported campus assault. The latter ended because the counselor didn’t adopt Jackie’s preferred approach to the session: “Can we talk about what I want to talk about?”

Finally, there were red flags in the interview that a less agenda-driven reporter might have picked up. For instance, Jackie (at considerable length) discussed her mother’s time in college, when she commuted 30 minutes each way as a day student at Brown. But the mother didn’t go to Brown (as Erdely later discovered).

Jackie said that after the alleged assault, she “didn’t get out of bed for weeks.” She later claimed that she left campus two weeks before the end of the semester in her first-year fall term. Yet Erdely never asked how she could have stayed enrolled if she never attended class, and wasn’t even on campus.

She twice informed Erdely that even one of her fellow activists told her “you are insane, you watch too many crime shows.” (Various elements of her story borrowed from Law and Order.)

And in a long discussion about whether the article would name Phi Kappa Psi, Jackie urged anonymity of the frat on grounds that she was scared that fraternity members would learn she had claimed she was raped in their house. Yet at other points in the conversation, she spoke about how lots of people on campus already knew about her story, and Erdely knew that she had spoken about the event at a “victims’ rights” rally.

Erdely, the non-skeptical reporter, did not probe the inconstancies. Indeed, she appears to have believed the inconsistencies made Jackie more credible.

Brown U. Messes Up Sex Assault Case, Accused Prevails

In campus sexual assault hearings, due process for accused students is rare, because of pressure from feminists and campus activists, administrators’ diffidence, and the Obama administration’s 2011 “Dear Colleague” letter that minimized protections for the accused.

Getting these cases into court for a due process trial is even rarer, but now the first such trial since the issuance of the “Dear Colleague” letter has ended with a victory for an accused Brown University student. Chief U.S. District Court Judge William Smith—as he had strongly hinted during oral arguments in mid-August—vacated Brown’s disciplinary judgment, arguing Brown had violated its own procedures, thus producing an unfair result.

Related: No Due Process, Thanks—This Is a Campus

The case involved student attempts to influence the judge, biased training of panelists in Brown’s sexual assault cases and the university’s extraordinary belief that flattery and flowers qualify as a manipulative part of sexual assault.

The case arose out of a fall 2014 incident where two members of the Brown debate team had oral sex after purportedly meeting (in a small room on campus) to watch a very late-night movie. In texts that flew back and forth between the two, the male student made clear his desire for no-strings-attached sex; the female was ambivalent, but signaled consent in some of her texts, while in others stating she wasn’t eager for sex. A few weeks later, the male student urged the female to put in a good word for him with a friend, with whom he wanted to have sex. These were not, to put it mildly, overly appealing characters.

Related: Don’t Bother with Due Process

In his 84-page ruling (which you can read here, and which both Robby Soave and Ashe Schow have also summarized), Smith identified three areas of misconduct by Brown (definition of consent, conduct of investigator, conduct of one of the panelists). Some of these issues were peculiar, related to the specific facts of this case, in which Brown had changed its policy between the time of the incident and the time the accuser decided to file her charges.

The decision has three areas of relevance, however, for matters beyond Brown. The first involves the “training” that the Office for Civil Rights (OCR) mandates all schools to provide to panelists in sexual assault cases. The equivalent in the criminal justice process would be if all jurors in rape trials (and only in rape trials) had to get training material—provided only by the prosecutors, designed to increase the chances of a guilty finding.

Anything Proves Sexual Assault

The inevitable result of this biased “training” manifested itself in the Brown case. After the incident, the accuser told a roommate what a great time she had with the student she’d eventually accuse; post-incident text messages sent by the accuser likewise indicated her having consented to sex. But one of the panelists, Besenia Rodriguez, said she didn’t consider the post-incident texts or conversations because her interpretation of Brown’s “training” suggested that sexual assault survivors behave in “counter-intuitive” ways. Therefore, she reasoned, “it was beyond my degree of expertise to assess [the accuser]’s post-encounter conduct . . . because of a possibility that it was a response to trauma.”

Rodriguez’s contention that her university-provided training shows that essentially any behavior—intuitive or counterintuitive—proves sexual assault “clearly comes close to the line” of arbitrary and capricious conduct, Smith noted. Yet the training Rodriguez received, and the mindset she reflects appears to be commonplace in campus sexual assault matters.

The case’s second key feature involves the pressure campaign—in the form of non-public e-mails—organized by a Brown student named Alex Volpicello. He even prepared a template—and dozens of students followed his lead and e-mailed Smith to urge him to uphold Brown’s handling of the case.

Volpicello’s ham-handed initiative predictably backfired with Smith. But the flurry of e-mails provided Smith with a glimpse of the witch-hunt atmosphere that exists on today’s campuses. He was deeply troubled, noting that “the Court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After issuing the preliminary injunction this Court was deluged with emails resulting from an organized campaign to influence the outcome.

These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court. Hopefully, they will read this decision and be educated.”

Alas, the anti-due-process activists have shown no interest in education. Indeed, Volpicello issued a statement denouncing Smith’s ruling as indifferent to “the emotional trauma of the survivor” and insulting to “the intelligence and civic awareness of us as Brown students.” “Where is the justice?” wailed Volpicello. Where, indeed.

Third, despite the victory for the accused student, Smith’s ruling was very limited. He appeared deeply reluctant to involve himself in a campus disciplinary matter and explicitly said Brown could re-try the accused student—even as he spent page after page detailing Brown’s dubious conduct in this case. (And this comes after he spent page after page detailing Brown’s dubious conduct in another sexual assault case.) Nor did he pull any punches about the absurdity of Brown’s current policy, which defines sexual assault as including such behavior as a male student giving a female student flowers, or flattering her, in hopes of getting her to agree to sex. As Smith noted, Brown defines such manipulative behavior as sexual assault.

As FIRE’s Samantha Harris perceptively noted, “Smith’s opinion also makes quite clear that the court takes no legal issue with the substance of Brown’s new Title IX policy, which employs an affirmative consent standard and uses a single-investigator model to resolve claims . . . Courts are deeply reluctant to interfere in the inner workings of university judicial systems, particularly at private institutions . . . When we talk to the families of students facing serious misconduct charges at private universities, they often express shock at how easily the school can jeopardize a student’s future while giving him or her so few rights. This case, while a legal victory for the plaintiff, underscores this problem.”

In his opinion, Smith contended that he could strike down only a college disciplinary system that “tends to injustice.” If a system whose personnel regularly violate students’ rights, while defining the giving of flowers before sex as a sexual assault, and amidst a witch-hunt atmosphere doesn’t tend to injustice, what type of system possibly could?

The Feds Now Run a Bureaucracy That Regulates Sex

Writing in the California Law Review, Harvard Law School professors Jeannie Suk and Jacob Gersen note, “Today we have an elaborate and growing federal bureaucratic structure that in effect regulates sex.” This is largely the result of pressure from the Education Department’s Office for Civil Rights, where I used to work. It has told colleges like the University of Montana and University of New Mexico 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.

The Obama administration expects colleges to massively meddle in students’ romantic 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.” 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.

By pressuring colleges to vastly increase their regulation of students’ sex lives, and demanding investigations students don’t want, the Obama Education Department has fueled vast expansions of college bureaucracies. There are now thousands of staffers responsible for enforcing Title IX sexual conduct mandates. As Suk & Gersen note, “the bureaucracy dedicated to that regulation of sex is growing,” and a recently-formed association of Title IX officials boasts 1,400 members.

Reason magazine’s Elizabeth Nolan Brown says, “The root of the confusion lies in federal government guidance. For instance, here’s a definition the White House offered universities in a model survey on campus sexual violence:

Sexual violence refers to a range of behaviors that are unwanted by the recipient and include remarks about physical appearance; persistent sexual advances that are undesired by the recipient; [or] unwanted touching…. These behaviors could be initiated by someone known or unknown to the recipient, including someone they are in a relationship with.”

If you expect colleges to police “remarks about physical appearance” made during a relationship with an ex-partner, and treat it as “violence,” you will end up with vastly more investigations (and need a vastly larger and costlier administrative apparatus).

Legislation may further fuel the growth of the sex bureaucracy. Congresswoman Nancy Pelosi (D-CA), the former (and possibly future) House Speaker, has advocated passing laws requiring college students across the country to show “affirmative consent” before engaging in sex or intimate touching, and requiring colleges to discipline those who don’t. This term “affirmative consent” is usually not well-defined (in terms of exactly what intimate activities it applies to, and what is needed to show the required “agreement”). So when the co-sponsor of California’s 2014 “affirmative consent” law was asked how an innocent person could prove “affirmative” consent, she said, “Your guess is as good as mine.”  Yet California state legislators expect colleges to enforce such rules for them (a number of colleges are now being sued by expelled students).

As Gersen and Suk note, very little actual consent qualifies as “affirmative consent” under the extremely narrow definition of “consent” contained in many campus “affirmative consent” policies. For example, many such policies require that the consent be “enthusiastic”: “Very rapidly,” point out Suk and Gersen, “the consent line shifted again in many places to make enthusiasm a requirement of consent itself—anything less than enthusiasm is sexual assault.” The claim is that consent is not meaningful unless it is “verbal,” “enthusiastic,” “sober,” “informed,” “honest,” etc.

Even if you liked being kissed, a college may deem it sexual assault if there was no explicit discussion beforehand between you and your partner to establish the existence of “affirmative consent,” as Ramesh Ponnuru has noted at Bloomberg News.

As supporters of “affirmative consent” legislation acknowledge, such laws require regulated entities to enforce “sweeping” changes on the government’s behalf. Ezra Klein, a leading supporter of California’s “affirmative consent” law, says it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between, since

It tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.

The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value.

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it…. Men need to feel a cold spike of fear when they begin a sexual encounter…. To work, “Yes Means Yes” needs to create a world where men are afraid.

There is also talk of enacting “affirmative consent” as a national requirement for not just students but all citizens. Historically, the federal government could not pass a nationwide law mandating “affirmative consent,” even assuming states could require it in their own borders. That’s because the Supreme Court’s 5-to-4 ruling in United States v. Morrison, 529 U.S. 598 (2000) had ruled that it is the function of states – not the federal government – to define and punish intrastate crimes like sexual assault. The Supreme Court’s Morrison ruling struck down Subtitle II-C of the Violence Against Women Act, which authorized federal lawsuits over sexual assault. The Court ruled that Congress lacked the power to do that under the Constitution’s commerce clause and section 5 of the Fourteenth Amendment.

But the crucial fifth vote, in that case, was provided by conservative Justice Antonin Scalia, who died in 2016.  He will likely be replaced by a progressive Justice who supports broad federal power over intrastate activities. That may encourage a more liberal Congress to pass national “affirmative consent” legislation covering everyone.

Students have often raised practical concerns about the workability of affirmative consent policies.  The New York Times quotes the developer of California’s “affirmative consent” curriculum, Ms. Zaloom, saying that to comply, you have to say “‘yes’ every 10 minutes” during a sexual encounter, resulting in constant awkward communication:

 “‘What does that mean — you have to say “yes” every 10 minutes?’ asked Aidan Ryan. . .

“‘Pretty much,’ Ms. Zaloom answered.”

The Times quoted a female student calling it “really awkward and bizarre”:

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

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

One supporter of “affirmative consent” legislation says it requires “state-mandated dirty talk” before intimate touching. Professors Suk and Gersen (and others) have argued that requiring students to do this sort of thing raises serious constitutional privacy issues under Supreme Court decisions like Lawrence v. Texas (2003), which struck down Texas’s sodomy law as a violation of privacy rights.

“Affirmative consent” laws have been opposed by civil liberties groups like the Foundation for Individual Rights in Education, and former ACLU Board member Wendy Kaminer. They also have been criticized by columnists like Bloomberg News’ Megan McArdle, Newsday’s Cathy Young, The New Republic’s Batya Ungar-Sargon, New York Magazine’s Jonathan Chait, and Amy Alkon, McArdle notes that such legislation “seems to criminalize most sexual encounters that most people have ever had, which (I hear) don’t usually involve multistep verbal contracts.” Affirmative-consent legislation has also been opposed by the editorial boards of newspapers such as the Los Angeles Times, Orange County Register, and New York Daily News.

Why Colleges Don’t Have Fair Hearings on Sexual Assault

Some politicians and media outlets seem to believe that college and university campuses are beset by a culture that is indifferent to rape and that the procedures for investigating and adjudicating claims of sexual assault are so one-sided as to constitute gender discrimination against female accusers. In reality, schools for decades have denied meaningful due process to students accused of sexual assault, and mandates from the U.S. Department of Education have only made the problem worse.

Far from condoning criminal activity, American college administrations are so concerned with ideology, federal funding, and public perceptions that they punish innocent students. Examples from four elite institutions—Yale, Amherst, the University of North Carolina, and Occidental College—reveal unfair procedures that come close to presuming guilt and severely restrict the opportunity for accused students not only to defend themselves, but even to prove their innocence. The problem continues to grow worse, and there is as yet no sign of a return to due process in campus tribunals.

Related: Another Unbalanced View of Campus Sex Hearings

KEY POINTS

  1. An April 4, 2011, U.S. Department of Education Office for Civil Rights document dramatically reinterpreted the sexual assault case procedures required for colleges to comply with Title IX.
  2. Threatening the withholding of federal funds, the OCR ordered all colleges to adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard rather than the stricter beyond-a-reasonable-doubt standard.
  3. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings, the new standard makes it too easy to “convict” the accused.
  4. The OCR also ruled that colleges that allowed appeals in the disciplinary process must allow accusers to appeal a not-guilty finding, something that would not happen in the criminal system because of prohibitions on double jeopardy.
  5. Even before issuance of the new OCR document, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

Related: What The Rolling Stone Affidavits Show

On April 4, 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) released a document dramatically reinterpreting Title IX, the federal law that prohibits gender discrimination in colleges and universities that receive federal funds. The document issued by the OCR was a “Dear Colleague” letter, an allegedly informal agency guidance that Department of Education officials claimed did not need to follow notice-and-comment rulemaking pursuant to the Administrative Procedure Act.

The “Dear Colleague” letter specified the procedures that the OCR believed colleges and universities should follow in sexual assault cases in order to comply with Title IX. Although two Department of Education officials have publicly noted that the letter does not have the force of law, this concession does not change its practical effect, which is to coerce universities into compliance. Moreover, each change in Title IX requirements found in the letter increases the likelihood of a guilty finding in a campus sexual assault case.

The Myth: Institutional Negligence

Since 2011, efforts by the Administration to bring universities into compliance with the new mandates have attracted widespread support from politicians and the media. President Barack Obama convened a White House summit on the topic, Vice President Joseph Biden oversaw a task force, and the OCR issued further “guidance” in the form of a 45-page question-and-answer document that also acted as an informal set of rules. In the Senate, Kirsten Gillibrand (D–NY) and Claire McCaskill (D–MO) have been the most outspoken supporters of this policy.

Both The New York Times and The Washington Post have published news articles portraying campuses as hotbeds of violent crime, with female students allegedly facing the risk of extremely high rates of sexual assault. The Times alone has run more than 20 articles on the topic since 2012, and the Post featured a multi-part series in 2015 based on a poll contending that one in five college women are sexually assaulted—a total it reached in part by redefining sexual assault to include such things as sex “coerced…through verbal…promises.”

Related: Georgetown’s Survey Stokes the Rape Panic

At the heart of this campaign is a belief—sincerely held in some instances—that college and university campuses are beset by a “rape culture,” in which the procedures for investigating and adjudicating sexual assault claims are so one-sided as to constitute gender discrimination against female accusers. Only unprecedented federal intervention, according to this theory, can promote justice.

The Reality: American Colleges Railroad the Innocent

For those who have spent any time on campus in the past two decades, this argument seems counterintuitive. The contemporary academy is extraordinarily sensitive to real and perceived discrimination on issues of gender (as well as race and ethnicity). Faculties are increasingly dominated by race/class/gender pedagogy in the humanities and some of the social sciences, and there has been an explosion in the number of administrators responsible for dealing with student life and diversity issues.

Given these facts, it is difficult to see how the academy’s environment could be considered so indifferent to rape as to necessitate unprecedented federal intervention. The on-campus responses to the two highest-profile university rape claims of the past decade—the Duke University lacrosse case of 2006 and the University of Virginia allegations outlined in Rolling Stone in 2014—suggest that, far from being indifferent to rape, the campus environment tends to presume guilt even when faced with non-credible rape allegations.

Nevertheless, the Obama Administration issued new guidelines in 2011 directing colleges and universities to change the procedures they use to evaluate sexual assault allegations. These changes have the effect of dramatically increasing the likelihood that an accused student will be found guilty. Threatening the possible withholding of federal funds, the “Dear Colleague” letter:

Related: Problems in the Stanford Sexual Assault Case

  • Considered it a violation of Title IX to do anything but adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard, in effect ordering colleges to change their procedures. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings—a denial of meaningful legal representation, the lack of mandatory discovery of evidence uncovered by the college, and the inability of colleges to require testimony under oath—the new standard makes it much easier to “convict” an accused student.
  • Stated that colleges that allowed appeals in the disciplinary process (which means virtually all of them) must allow accusers to appeal a not-guilty finding, imposing a type of double-jeopardy principle for students accused of sexual assault.
  • Chastised colleges for taking too long to investigate and adjudicate complaints, with the Obama Administration suggesting a 60-day cap on the entire process.
  • Discouraged colleges from allowing accused students to cross-examine their accusers even in cases in which the accuser is the only witness in a disciplinary hearing that could end with the accused being found responsible for committing sexual assault.

Related: How the Feds Use Orwell to Apply Title IX

The “Dear Colleague” letter imposed a nationwide set of standards, and then-OCR head Russlynn Ali also made clear that the office would welcome the filing of gender discrimination claims by students against their own schools. On May 1, 2014, in a highly unusual move, the OCR revealed the identities of the colleges and universities under investigation (currently more than 200) but refused to “disclose any case-specific facts or details about the institutions under investigation.” The OCR’s inconsistent approach to transparency has left the public with the impression of widespread problems justifying a panicked federal response without the opportunity to evaluate the credibility of these complaints.

In response to the OCR’s guidance, several new campus groups addressing the issue of rape have encouraged self-described “survivors” to file Title IX complaints. The two most prominent, SurvJustice and Know Your IX, have opposed anything approximating fair procedures for college students accused of offenses—while effectively downplaying the idea of requiring colleges to turn sexual assault adjudications over to the courts. Know Your IX co-founder Dana Bolger explained why to The New York Times. The “college disciplinary system,” she argued, is superior to a “criminal justice system [that] notoriously fails rape survivors,” since “police disbelieve victims, prosecutors refuse to take on the majority of cases because they lack witnesses, the standard of proof is impossibly high and juries buy into the rape myths that saturate our society and acquit perpetrators.”

Although sexual assault obviously should not be tolerated and accusations of rape should be treated seriously, it is simply not true that American colleges are systematically turning a blind eye to such violence. The proliferation of activist groups on the side of “victims” suggests, if anything, an extreme desire to use the threat of severe sanctions to change cultural norms.

Related: Campus Surveys Inflate Rape Statistics

Case Study #1: Yale University

The first major Obama-era Title IX complaint came from Yale University. In October 2010, pledges to the Delta Kappa Epsilon fraternity shouted something crude, albeit not illegal. The resulting public backlash led to apologies from the fraternity members, suspension by the national fraternity of the local chapter’s ability to secure pledges, and abandonment of the university’s traditional free-speech absolutism to punish some of the students. The Yale Executive Committee declared that the statements “had threatened and intimidated others, in violation of the Undergraduate Regulations of Yale College as they pertain to ‘harassment, coercion or intimidation’ and ‘imperiling the integrity and values of the University community.’”

The fraternity’s spectacle was crass and violated norms of basic decency, but The Atlantic’s Caitlin Flanagan observed that it also could be seen as an “obvious reaction” to the oppressive atmosphere of political correctness on campus. In Flanagan’s opinion, referencing the leader of the 1964 Free Speech Movement at the University of California:

[The] closest you’re going to get to Mario Savio—sick at heart about the operation of the machine and willing to throw himself upon its gears and levers—is less the campus president of Human Rights Watch than the moron over at Phi Sigma Kappa who plans the Colonial Bros and Nava-Hos mixer.

Despite apologies from the fraternity members and condemnation from the Yale administration, campus activists addressing the issue of rape seized on the incident to file a Title IX complaint against Yale. The administration quickly settled. In a voluntary resolution agreement with the OCR, the university agreed to hire various Title IX bureaucrats and to rework its campus sexual assault policy. That policy “encompass[es] broad ranges of behavior,” since the definition of sexual assault employed by Yale is “more expansive” than the one that is used by the federal government or local law enforcement. The university has never explained why it chose to redefine a term—sexual assault—commonly understood in both the law and culture, but in a 2013 document, it did provide examples of the sort of behavior that could lead the school to brand a student guilty of engaging in “nonconsensual sex.”

Related: Suing the Office for Civil Rights

Yale then set up a two-tier system to handle rape allegations. Formal claims would be handled by a newly created University-Wide Committee on Sexual Assault (UWC). The UWC process begins with an allegedly “impartial fact-finder” (whose employment comes through the university Title IX office, which has a repeat relationship with and is often attuned to the views of the regulators) who gathers “documents and conduct[s] interviews as necessary to reach a thorough understanding of the facts and circumstances surrounding the allegations of the complaint.” The investigator’s report serves as the evidentiary basis for the five-person committee that decides the fate of the accused student.

The accused student cannot call relevant witnesses unless he can prove to the panel in advance that he “can offer potentially relevant information that was not conveyed to the fact-finder.” In the rare cases in which a campus accuser also goes to the police, Yale’s disciplinary panel may—but is not required to—consider the evidence from an actual law enforcement investigation.

Finding the truth is all but incidental to Yale’s procedure. Lest the accuser be retraumatized (regarding an event that, at the time of the hearing, Yale has not established to have occurred), the accused student not only cannot cross-examine the accuser, but also has no right to be in the same room as she gives her testimony. The most input Yale allows the accused student is the submission of written questions for the panel to ask the accuser—if the panel chooses to do so. In essence, the accused student is found responsible for committing sexual assault if three of the five committee members find it more likely than not that a violation has been shown (usually, that the accuser’s version of events is more credible than the accused’s).

Related: Yale’s Case against Montague Looks Shaky

These “formal” hearings are a paragon of due process when compared to the second avenue for Yale accusers to present their complaints. Under an “informal” process, which Yale used in about a dozen cases in 2011–2012, the accused student has no right to present evidence of his innocence; indeed, in at least one case, the accused student was not even informed about the specifics of the allegations against him.

Yale Deputy Provost Stephanie Spangler justified this procedure by explaining that the university’s “goal is to achieve a resolution that is desired by the [accuser] and acceptable to the [accused].” Further, one goal of the university process is to help accusers “regain their sense of well-being.”

It is impossible to know what goes on behind closed doors, and perhaps the only real protection for a student accused through the informal process is a promise that the process will remain confidential. But in at least one high-profile case—that of former Yale quarterback Patrick Witt—an unknown party leaked the existence of a complaint first to the Rhodes Trust (Witt was under consideration for a Rhodes Scholarship) and then to The New York Times, which produced a front-page story that failed to describe the guilt-presuming procedures under which he was charged. There was no indication that Yale ever investigated, much less punished, the person or persons who broke the university’s rules and shared the information about Witt’s case. When he wrote about the experience several years later, Witt recounted that Yale’s policy “almost ruined my life.”

Witt was the first of many accused students victimized by Yale’s new policies. For at least a year, the university’s definition of sexual misconduct was so broad as to include “emotional or economic abuse” by “roommates.” In one instance, a student was found not guilty but was nonetheless punished by the university, which ordered him to take “sexual consent training,” and on several occasions, Yale undertook investigations based on anonymous complaints, raising concerns that the new Title IX process could be used for revenge or ideological targeting.

Related: Accused, Expelled, and Smeared as a Rapist—at Yale

Among the faculty, an unknown male professor was subjected to a sexual harassment complaint from a female colleague. Yale investigated by speaking to the accusing professor and to the department chairman—but never informing the accused professor that charges had been filed against him, thereby robbing him of an opportunity to defend himself. The inquiry ended with the department chairman formally monitoring the male professor for an indefinite period. This incident produced scant public dissent among the faculty.

Case Study #2: Amherst College

As occurred with the fraternity pledge incident at Yale, a single event triggered Amherst’s explosion of Title IX activism. In October 2012, a former student named Angie Epifano penned a lengthy recollection of her experience as a self-described survivor of sexual assault. In May 2011, she wrote, a student acquaintance raped her. She did not report the incident to police, nor did she want the case adjudicated by a campus tribunal: “No thank you, I could barely handle seeing him from the opposite end of campus; I knew I couldn’t handle that level of negativity.”

Epifano alleged shocking treatment from Amherst administrators. She claimed that the college’s sexual assault counselor, Gretchen Krull, told her not to report the crime and instead advised her to “forgive and forget.” Soon thereafter, an Amherst dean, concerned about the student’s mental health, denied her request to study abroad in Africa. The dean allegedly informed her that “Africa is quite traumatizing, what with those horrible third-world conditions: disease…huts…lions!”

A campus administration committed to the truth might have asked some hard questions about Epifano’s veracity. On a campus already known for its political correctness, for an unidentified dean to have made disparaging remarks about Africa seems extraordinarily unlikely.

Related: Railroading the Innocent in Cincinnati

On October 18, 2012, Amherst President Carolyn “Biddy” Martin uncritically accepted Epifano’s presentation of events as “horrifying” and promised “consequences,” either with “procedures or [with] personnel.” Within a few days, Gretchen Krull had resigned, with some speculating that she had been made a scapegoat. Martin then appointed an eight-person committee to develop a new sexual assault adjudication procedure. A professor of women’s and gender studies chaired the panel, whose only other faculty member specialized in African–American literary and cultural studies; a campus activist addressing the issue of rape, Liya Richtman, represented student views.

Future Know Your IX co-founder Dana Bolger, an Amherst student, hoped that the policy change would create a new culture on campus, since “we have all, at some time, in some way—through our jokes, our questions, our arguments—silenced a survivor” and “at some time, in some way, exerted our respective privileges—male, white, heterosexual, disgendered, able-bodied—to silence our peers.” The idea that 21st century Amherst College is dominated by white, heterosexual, male privilege suggests an unusual interpretation of reality. The type of guidelines developed in this ideological mess was unlikely to treat any accused student fairly, but it remained unclear whether Amherst’s new policy was so one-sided as to prevent even an innocent student from defending himself.

For several months, despite the claims of activists that Amherst was a campus awash in sexual assaults, no cases were filed to test the new system’s scope. Then, in late 2013, Amherst got its first post-Epifano claim.

In a column published in June 2015, Washington Post blogger Radley Balko wondered why so many high-profile campus rape allegations have proved to be unfounded. He offered several reasons, including the following:

It may be that activists deliberately seek out and champion the ambiguous cases to demonstrate their commitment to the cause. This is pretty common among ideologues. (I see it often among my fellow libertarians.) You show your bona fides by taking a hard line even on those issues, incidents and scenarios that scream out for subtlety. You see this in some of the reform proposals put forth by anti-campus rape activists, such as laws requiring explicit consent before each progression of sexual activity or in staking out absurd positions such as “drunk sex is always rape.”

Balko could have been describing the Amherst case, which arose out of an incident in February 2012. Following an apparently consensual sexual encounter with another student, the female accuser apparently had a change of heart. She also eventually fell in with a new group of friends: many of the campus activists addressing the issue of rape who were energized by the Epifano essay. By fall 2012—inspired, she wrote, by Epifano’s article—she published an essay at AC Voice, a webzine for which several in the group wrote. The female accuser now reinterpreted the incident of the previous semester as a sexual assault in spite of the fact that most of the accuser’s anger appeared to be directed not at her alleged assaulter, but instead at a “former friend” who had treated her contemptuously after discovering who the accused man was.

Related: How Title IX Became a Policy Bully

The female student waited for another year before filing a sexual assault claim at Amherst, and the investigation and adjudication of the case showcased the unfairness of the college’s new policy—which, to be clear, is typical of how most schools now handle the issue. A hired investigator spent a day on campus interviewing witnesses; when asked whether she had any text messages or e-mails about the incident, the accuser said that she had none. During the hearing, the accuser admitted that she had texted after the incident, but none of the panelists asked her to explain why she had told the investigator otherwise. To corroborate her assault claim, the accuser said that she had invited someone over to her room after the incident to talk and comfort her. None of the panelists asked the identity of this mystery witness, who had not been interviewed by Amherst’s investigator.

Moreover, the accused student could not raise these questions effectively: Prohibited from having a lawyer by his side in the hearing, he was required under Amherst’s new rules to submit written questions for the accuser before the hearing. As legal blogger Scott Greenfield has noted:

Submitting questions isn’t a particularly effective way to confront an accusation. Questions beget answers, and answers beget more questions. Putting aside whether [the accused student] is adept at formulating incisive questions, no one can effectively confront an accuser without hearing her answers and following up.

The accuser said that she had consented but in the middle of the process had revoked that consent; the accused student said that he was too drunk to recall anything that happened. This portrayal of events was enough for the panel to find the accused student responsible. Amherst promptly expelled him.

Related: Why ‘Yes Means Yes’ Rules Can’t Work

The accused student hired a lawyer who subsequently uncovered considerable evidence undercutting the accuser’s credibility, including post-incident text messages (which the accuser had implied to Amherst’s investigator did not exist). Any fair investigation, of course, would have discovered this at the time. Amherst’s response? The accused student had failed to uncover this information within seven days of the disciplinary hearing, so he was now out of luck.

The student filed a federal lawsuit, which remains pending. In that lawsuit, Amherst has contended that the process worked as the college intended in this case.

Case Study #3: University of North Carolina at Chapel Hill

While Amherst was finding an innocent student responsible for rape, another incident occurred at the University of North Carolina at Chapel Hill (UNC). Inspired by the activities at Amherst and Yale and in constant contact with the accusers there, she later told The New York Times, a student named Andrea Pino stepped forward.

Pino claimed that in March 2012, another UNC student raped her at an off-campus party. (Because she has admitted that she had never seen the man before that evening and never saw him again, she left it unclear as to how she concluded that her attacker attended UNC.) Pino elected not to report the alleged assault to police, nor did she file a complaint through the university because, she later said, unnamed other students doubted that it would do any good. Instead, Pino went to a UNC academic employee about her plight, and this person allegedly told her she was lazy.

The identity of the unnamed figure who made the “lazy” remark has shifted depending on the reporter interviewing Pino. According to Inside Higher Ed’s Allie Grasgreen, Pino said that “an academic adviser told her she was lazy when her experience impacted her performance in the classroom.” ESPNW’s Allison Glock, on the other hand, quoted Pino as saying that “when I explained to a professor what was happening and how it was affecting my grades, I was told I was lazy, and it was suggested that maybe I couldn’t handle Carolina.”

Related: Ten Campus Rapes—Or Were They?

Neither Grasgreen, who identified the “lazy” comment as coming from an academic adviser, nor Glock, who quoted Pino as attributing the remark to a professor in one of her courses, appears to have reached out to the unnamed academic adviser/professor for comment on whether Pino’s story was actually true. Nor did the documentary filmmakers responsible for The Hunting Ground, which presented Pino’s tale uncritically. Again, it is very unlikely that a UNC professor or academic adviser, having been informed by a student that someone had raped her, would respond by calling the student lazy.

As Pino was portraying herself as victimized by a gender-hostile administration, UNC was actually revising its policies to make it easier for students like Pino to see their alleged attackers found guilty. In 2012, the university removed sexual assault cases from the jurisdiction of its Student Honor Court and turned them over to a special new panel that handled only allegations of sexual assault, claiming that students could not be sufficiently trained to handle such cases fairly. Given the timing, however, this decision appears more likely to have been motivated by a desire to accommodate the OCR’s “Dear Colleague” letter, since the move allowed UNC to shift its burden of proof in sexual assault cases (and only in sexual assault cases) from the Honor Court’s standard of beyond a reasonable doubt to a preponderance of the evidence, something required by the letter.

Melinda Manning, an assistant dean of students, rejoiced at the abandonment of a policy that discouraged “victims” from coming forward. Summarizing the dean’s views after an interview,Inside Higher Ed’s Allie Grasgreen reported Manning’s view that the earlier system discouraged reporting by “requiring victims to be judged by a roomful of peers.” Of course, a university disciplinary system judges the accused students, not the accusers, and administrators should know better. Manning resigned the following year, claiming that unnamed UNC administrators had pressured her to underreport rape claims; the university fired back with a document claiming that Manning had underreported filings. The ex-dean joined several accusers in filing a Title IX complaint against UNC. As with all such documents, the OCR declined to make the filing public, and contemporaneous press reports suggested alternatively that it was damning or frivolous.

In any event, UNC spent nearly $200,000 on a consultant to rework its Title IX mechanisms and hired seven new staff employees to deal with the matter at an annual cost of around $500,000 before unveiling yet another new sexual assault procedure, this one even less friendly to the rights of the accused than the preceding one. By this point, North Carolina had passed a law requiring colleges to permit students accused of disciplinary offenses to have access to a lawyer. (North Dakota is the only other state to have such a law.) An investigator, hired and overseen by the Title IX office, is not compelled to share his or her evidence with the accused; he or she must only produce a draft of his or her report, effectively precluding the accused from offering exculpatory material during the process. Only under limited circumstances can the accused student introduce new evidence at the hearing.

The accused student’s attorney can examine a draft of the investigator’s report, but only by coming to UNC and promising not to photograph or copy the report. Once the hearing begins, the accused student’s lawyer, as dictated by state law, may attend it but may not cross-examine the accuser; he or she may only submit questions to the hearing chairman, who can ask the questions, modify them, or simply move on. The hearing procedures guarantee neither that the lawyer can even see the accuser as she gives her answers nor that he or she can cross-examine other witnesses.

The new procedures maintained the lower preponderance-of-evidence standard, but even though the OCR is silent on the issue of unanimous findings, UNC now allows a student to be, in essence, found responsible for committing sexual assault based on a two-to-one vote of the disciplinary panel. The guidelines do not explain why the university followed this course.

Even after a student graduates, he can still be sanctioned by UNC. The school allows the filing of anonymous reports of sexual assault to “help give university administrators a better picture of the number of assaults that are occurring within the university student community.” The policy’s wording suggests that the university simply assumes that the assault has occurred, based solely on the anonymous filing. UNC’s policy also has no equivalent of a statute of limitations, a deficiency that allows for the filing of complaints years after the alleged event even when both the accuser and the accused are no longer students at the school. Among elite universities, only Harvard has such an open-ended policy, which raises the question of whether a university could use a years-after-the-fact sexual assault claim to revoke a degree.

Case Study #4: Occidental College

On the West Coast, the most aggressive Title IX activism has been at Occidental College. As at UNC, Yale, and Amherst, Occidental appeared to have a disciplinary structure that denied meaningful due process to the accused. Well before “affirmative consent” laws were enacted in California, Occidental policy maintained that a student who obtained such consent could nonetheless be deemed a rapist. Many have criticized so-called affirmative consent policies as unrealistic and damaging. The college’s sexual assault policy denied the accused student a right to counsel in the proceedings while informing him that terms like “innocence” and “burdens of proof” were “not applicable.” A healthy majority of the undergraduates—currently 56 percent, with 57 percent in the most recently admitted class—are women, and 50 percent of the college’s professors are women.

Nonetheless, according to a small group of campus activists, the school turned a blind eye to sexual assault on campus. In 2013, a handful of self-described survivors, joined by faculty members Danielle Dirks and Caroline Heldman, formed a group called the Oxy Sexual Assault Coalition, or OSAC, which denounced the “yes-might-not-mean-yes” policy as insufficiently protective of accusers. The group adopted a tagline of “because rape is a crime”—even as Dirks (speaking, she said, “as a criminologist”) announced that she had “given up on the criminal justice system.”

OSAC had a preference for adjudicating sexual assaults through college tribunals, even though these assaults would usually be felony offenses in the criminal courts. As explained by Dirks, “College campuses, which are supposed to be the bastions of cutting-edge knowledge and a chance to shape the rest of the country, actually can do right.” Celebrity attorney Gloria Allred involved herself, representing several Occidental students who filed Title IX complaints against the college, which quickly settled.

The college attracted national attention after expelling a student for rape—despite a police report concluding that no rape had occurred and despite text messages from the accuser checking on whether the accused student had a condom and telling a friend, “I’m going to have sex now.”]Occidental reached this decision by contending that while both students were intoxicated, the female student’s drunkenness rendered her unable to consent to intercourse that her own text messages showed she had initiated.

By comparison, even Yale’s “expansive definition of sexual assault” appears to exclude the kind of behavior that Occidental deemed rape. Yale’s guidelines cite an instance of the parties’ “send[ing] a few texts” discussing their plans for intercourse and then confirming those plans once they arrived in the bedroom as an example of “consensual sex.”

In an essay for the Harvard Law Review, Harvard Law professor Janet Halley criticized the “pressure on schools to hold students responsible for serious harm even when—precisely when—there can be no certainty about who is to blame for it. Such calls are core to every witch hunt.” In 2013, the number of reported sexual assaults at Occidental increased from 10 (in 2012) to 60. This figure meant that Occidental alone, with a female enrollment of just over 1,100, accounted for 40 percent of the total increase in reported sexual assaults at all of California’s four-year public and private colleges and universities. As attorney Mark Hathaway has noted, Occidental’s rate of reported sexual assaults in 2013 was 16 times higher than that of the next 10 California colleges and universities combined. It could be, of course, that this Los Angeles liberal arts campus is a statistical anomaly and that it really is very dangerous, but such an interpretation seems very unlikely.

Conclusion

Campus activists addressing the issue of rape have assiduously conveyed the impression that such institutions as Yale University, Amherst College, the University of North Carolina, and Occidental College are led by administrators who ignore widespread criminality. Sexual assaults on college campuses do occur and are a serious issue, but justice requires procedures that afford due process both to accusers and to the accused. Yet even before the OCR’s “Dear Colleague” letter, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

(Reprinted with permission from the Heritage Foundation)

The Feds Make a Mess of Sex and Gender

The never-resting Office for Civil Rights (OCR) U.S. Department of Education and the equally insomnolent Civil Rights Division of the U.S. Justice Department have just issued their latest “Dear Colleague” letter advising the stewards of the nation’s schools of their newest responsibility.

The “Dear Colleague Letter on Transgender Students” consists of five pages of text, three pages of footnotes, and a notice on “language assistance” in the event that non-English speakers are puzzled by the newly enunciated need to avoid discrimination against transgendered and gender-transitioning youth.

The number of such youth is, by all accounts, vanishingly small, but they loom large in current public policy deliberations.  Most notably, they have become hostages in the battle between the Obama administration and the state of North Carolina.  As has been widely reported and discussed, the Tar Heel State has ruled that individuals should use public restrooms corresponding to their sex at birth.

This has raised questions of post-modern epistemology.  As a matter of science, the sex of all humans is fixed at birth and is unchangeable.  That sex is present in the chromosomes of every cell in the individual’s body.  Even the most radical surgical, hormonal, and cosmetic interventions are powerless to change it.

But what is true of sex need not be true of the elastic concept of “gender,” which has been thrust on American culture as the all-purpose substitute for sex.  As it happens, my discipline, anthropology, bears some responsibility for this.  Way back in the 1930s, even before “gender” became the catchphrase, Margaret Mead was preaching the idea that cultures exhibit dramatic differences in the ways they define the proper temperaments of men and women.  Masculinity and femininity are, as we have learned to say with due solemnity, “culturally constructed.”  The men of the Tchambuli tribe in New Guinea, said Mead, are prissy and feminine by our standards; the women, all-business and managerial.

No need to elaborate.  For many decades, social science along with legions of Tchambuli-like American feminists have run with the idea that gender is “socially constructed.”  And what one Tchambuli can construct, another can deconstruct, and yet another reconstruct.  It took us a while to get all the way to the destination that people should feel free to make up their own genders, but at long last the Office for Civil Rights has set us straight.  Though that is probably not the right word.

But, as I said, we face epistemological complications.  The civil rights theory of transgender rights posits that “gender identity” is an inherent fact in the individual, which is to say that it sounds a lot more like what we used to call the individual’s sex.  If so, it is not “culturally constructed,” but somehow given in the nature of the individual.  In which case, it isn’t “gender” at all, and cannot be the basis for gender discrimination.

But let’s not quibble. Intellectual coherence isn’t what we require of federal agencies devoted to progressive social justice.  Progress is what we expect.  The “Dear Colleague” letter begins with a statement of seeming fact:

Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students.

It is “parents, teachers, principals, and school superintendents” who are concerned about “civil rights protections for transgender students.” OCR is simply providing the answers that are needed in these troubled times.

It is small measure of how badly these answers are needed that I passed through 22 years of formal education and more than 25 in college and university teaching without knowingly encountering a single transgendered student.  I realize this now to my shame.  How many students did I address by cis-gendered pronouns while thoughtlessly assuming that their apparent sex matched their inner gender identities?

Well, perhaps none, but still it is possible.  It happens.  A faculty member at a large public university wrote to me this week on exactly this matter.  He incorrectly used the pronoun “he” in reference to a Japanese author whose “gender identity” he didn’t know.  A transgendered student in the class promptly filed a complaint with the university, which has summoned the faculty member to meet with the dean to ensure that such a transgression is not repeated.  The faculty member has so far not made his travail public, perhaps out of the hope of saving his university the ignominy of appearing on an OCR blacklist for its overly lenient handling of the case.

What the OCR letter provides, of course, is an astonishing annexation of new power to the federal government.  Humanity is capable of all sorts of twists and turns when it comes to sexual appetites and personal identities.  Societies attempt to impose some order on this, and Margaret Mead was not wrong in observing that the ordering ideas vary from place to place.  The social norms that prevail at 400 Maryland Avenue, SW, Washington, DC 20202, where the tribe of OCRians reside, for example, differ from the social norms in North Carolina and most other civilized places.

We need to make allowance for these differences lest we fall into a pattern of inadvertent discrimination.

By OCR’s account “Compliance with Title IX” requires that as a condition of receiving federal funds, schools “not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.”  When North Carolina boldly put itself in complete compliance with this law by insisting that “sex” means sex, it ran afoul of the OCR conception that “sex” means self-invented “gender identity.”  To that end, schools are supposed to provide transgendered students access to the “sex-segregated restrooms and locker rooms,” of their own choice.

OCR’s advice on athletics is a bit more complicated.  Schools can still differentiate among students on the basis of (real) biological sex provided they do not “rely on overly broad generalizations or stereotypes,” or act on “others’ discomfort with transgender students.”

I was briefly under the impression that “discomfort” was an index of oppression, and where discomfort exists, surely OCR regulatory assuagement must follow.  But no, the discomfort of transgendered students faced with normative expectations of sexual identity is a crisis.  The discomfort of the “cis-gendered” is just their tough luck.

I can’t unravel this mystery here, though I note that many commentators are giving it their best effort. The only thing clear to me is that OCR has reached such an apotheosis, that it now has the power to overrule nature and command our very chromosomes to obey its dictates.  We’ll see how that works out.

Suing the Office for Civil Rights

The prospect of the Office for Civil Rights (OCR) being sued has been much in the news lately. Talk began with an announcement from FIRE—on the fifth anniversary of the issuance of the “Dear Colleague” letter—that it was soliciting an accused student to sue OCR. Attorney Andrew Miltenberg then filed two such suits, on behalf of an accused student from Colorado and a state legislator from Georgia.

In a break from the past, the Dear Colleague letter reinterpreted Title IX to grant the federal government authority to order colleges to enact specific disciplinary procedures for handling sexual assault (and sexual harassment) complaints filed by one student against another. Each of the changes ordered or strongly urged by the administration increased the likelihood of a guilty finding; the best-known change required colleges to use the lowest burden of proof, preponderance of evidence (50.01 percent), to determine guilt.

Related: An Illegal Program OCR Won’t Strike Down

OCR issued the Dear Colleague letter without going through a notice-and-comment period, which the Administrative Procedures Act requires for new government regulations. Subsequent claims by OCR head Catherine Lhamon as to why the office pursued this unusual course—that it didn’t need to do so, because the preponderance standard previously had been offered in resolution agreements with two of the nation’s thousands of colleges; or that the Dear Colleague letter merely provided guidance—don’t pass the laugh test. The most likely explanation: the delay caused by notice-and-comment would have ensured that the Dear Colleague letter wouldn’t have appeared until after the 2012 elections, robbing the letter of its value confirming the administration’s identity politics bonafides.

Republicans control 34 of the nation’s 50 governorships; many of these states have been under GOP control for more than a decade. Every state’s higher-ed law is different, but all give at least some control (usually through appointment of trustees) to a governor. Any of these 34 state education boards would have had standing to challenge OCR’s new mandate. Yet none have—a reminder that campus due process has no constituency, and with the exception of Lamar Alexander and James Lankford, the Republican record on this issue is very poor.

Any lawsuit coordinated by FIRE—or the two Miltenberg lawsuits already filed—first will need to survive a challenge on standing that a university threatened by OCR would not face. But the “Dear Colleague” letter not only lowered the evidentiary standard, but also mandated the right of accuser to appeal, pressured colleges to accelerate their adjudication processes, and discouraged cross-examination. So for standing purposes, the likeliest case would involve a student—as in the recent cases at James Madison and George Mason—whose not-guilty finding got overturned on appeal.

More often than not, when universities have lost motions to dismiss in due process lawsuits, they’ve quickly moved to settle the case. The federal government has no incentive to settle, so this litigation likely will be protracted. What would the effects be if any of these lawsuits succeed?

In theory, colleges could return to fairer adjudication systems—they could increase the burden of proof, end the double-jeopardy scenario where not-guilty findings can be appealed, and create more robust investigations. It seems unlikely that many colleges would actually pursue such a course. But the termination of the “Dear Colleague” letter would, at the very least, remove any chance that judges could rely on it—as occurred in the recent Cincinnati decision—to side with universities in due process lawsuits.

Returning to the pre-“Dear Colleague” letter status quo also would allow for a more even-handed discussion of why colleges are legally compelled to adjudicate felony allegations by students in the first place. The recent article by Jacob Gersen and Jeannie Suk uncovered at least one resolution letter, from 2005, in which an OCR regional office made clear that colleges had no obligation to investigate criminal offenses.

Bush-era court decisions to the contrary seemed far more limited than anything the Obama administration has proposed. A decision from the 11th circuit, for instance, made clear that its findings were dictated by the unusual facts of the case—that the University of Georgia recruited a basketball player who had committed sexual misconduct at his previous school. And the only non-athlete case from the Bush years that foreshadowed the Obama policies—the Kelly case at Yale—featured a judge who seemed to ignore the provisions of the Supreme Court’s 1999 Davis ruling. (You can read materials from the Kelly case file here.)

Progress toward a fairer campus adjudication system—much less a structure where colleges no longer investigate felonies at all—can only occur once the “Dear Colleague” letter ceases to exist. Hopefully the courts will be up to the task.

An Illegal Program OCR Won’t Strike Down

In my research as a labor economist, I discovered that the Lawton program, offering aid exclusively to minority and disadvantaged students at the University of Wisconsin-Madison, is operating illegally—Title VI of the 1964 Civil Rights Act prohibits Federal aid going to members of certain racial and ethnic groups, and not others, as Lawton does. That was 11 years ago, and the Office of Civil Rights of the Department of Education still hasn’t managed to rule on my formal complaints.

Not that there is any doubt about the Lawton Undergraduate Minority Retention Grants. Eligibility continues to be restricted to minority groups specified as “African American, Hispanic American, Native American, South East Asians.”

To my periodic inquiries about the delay in ruling, OCR offers several stock responses.  It claims in a February 2009 letter that my complaints “involve highly complex legal issues.” OCR claims in that same letter it “is proceeding as expeditiously as possible.” In an October 2013 letter OCR refers again to the “complexity of the issues involved.”

Anyone wanting to inquire about the status of my complaints or any other unresolved complaints will be frustrated by OCR’s record-keeping practices. Based on a recent FOIA request for a chronological listing of all Title VI complaints filed against post-secondary institutions, I discovered that OCR no longer lists the names of institutions whose long-standing complaints have not been resolved. I could identify my complaints only because I knew their docket numbers and the dates they were filed.

The cards seem to be stacked against any quick ruling on my complaints. I suspect UW is trying to find some way to rationalize its continuing discrimination under the Lawton Program. At the same time, I suspect OCR is trying to find some way to avoid ruling that the UW is violating Title VI. The likely reason: concern that doing so would jeopardize similar racially-exclusive scholarship programs at other colleges and universities.

Senators Reward OCR Abuses with Budget Hike Proposal

Twenty-two Senators have asked the Appropriations Committee to increase the budget of the Education Department’s Office for Civil Rights (OCR) by almost 30%. All of those Senators are Democrats except for Sen. Dean Heller of Nevada.

OCR has pressured colleges and high schools to adopt unconstitutional speech codes. It also has pressured school districts to adopt veiled racial quotas in school discipline. And in sexual harassment cases, it has stacked the deck against accused students, and occasionally forced colleges to reward false allegations. It has done all these things by expanding and essentially rewriting the federal civil-rights laws Title VI and Title IX through uncodified administrative “guidance” and “Dear Colleague” letters.

The pretext for this proposed increase is that OCR is supposedly overworked. But if this is actually true (which is doubtful, as I explained in the Chronicle of Higher Education; delays at OCR often occur due to its own slowness, inefficiency, and mismanagement), it is only because of OCR’s own overreaching. It routinely makes up violations out of thin air in a way that generates far more “violations” to investigate.

The “Dear Colleague” letter lowered the burden of proof in campus cases of sexual misconduct from ”clear and convincing evidence” to “preponderance of the evidence,” in effect just over 50 % certainty of guilt. It also helped erode other due process protections.

As The Washington Examiner notes, Several Democratic senators are requesting additional funds for the Education Department to continue policing the sex lives of college students.

Sens. Kirsten Gillibrand, Tim Kaine, Claire McCaskill and Mark Warner have written a letter calling for increased funding for the Department’s Office for Civil Rights. . .The senators are requesting a budget of $137.7 million for OCR. [The current level is $107 million].

Here’s how we got to this point, put as simply as possible: In 2011, OCR sent out a “Dear Colleague” letter that vastly expanded the definition of Title IX and what schools needed to do in order to comply with the statute. Because of the broadening of the statute, schools have been accused of violating students’ rights under Title IX and have come under investigation by OCR. Now OCR is requesting more money to investigate these schools because it has become overwhelmed.

The “Dear Colleague” letter sent by OCR in 2011 did not go through the required notice-and-comment period…. This prompted Sen. James Lankford, R-Okla., to demand that OCR justify its overreach. OCR failed to do so to Lankford’s liking.

Why does this matter? OCR expanded its own responsibilities — it wasn’t Congress or anyone else who gave it more authority. Put another way: OCR expanded its own responsibilities and now wants more money to carry out those responsibilities.

Sherry Warner, president of Families Advocating for Campus Equality, criticized the proposed increase sought by the Senators in their March 17 letter. “The request by Senators McCaskill and Gillibrand of $137.7 million for the Office for Civil Rights at the Department of Education essentially rewards the OCR for its current overreach on college campuses,” Warner wrote. “This request asks the Appropriations Subcommittee on Labor, Health and Human Services & Education to fund the OCR’s illegal, expansive and nebulous standards which schools around the country are struggling to enforce.”

Legal experts have also questioned the wisdom of increasing OCR’s budget. In a February 26, 2015, letter to Congress, two members of the U.S. Commission on Civil Rights noted that OCR “has all too often been willing to define perfectly legal conduct as unlawful. Though OCR may claim to be underfunded, its resources are stretched thin largely because it has so often chosen to address violations it has made up out of thin air. Increasing OCR’s budget would in effect reward the agency for frequently overstepping the law.”

Congress already increased OCR’s budget by 7% last year in the omnibus spending bill passed in December with President Obama’s assent. That drew criticism from Investor’s Business Daily, which lamented that the “omnibus spending bill grants a generous 7% increase in the budget for the Education Department’s Office for Civil Rights, which is pressuring school districts across the country to adopt racial quotas in discipline,” in what the newspaper characterized as “radical, out-of-control, race-mongering.”

It also is not clear that increases in OCR’s caseload in recent years actually reflect additional work. On March 18, 2015, The Washington Post quoted OCR’s head admitting that just “two individuals were responsible for filing more than 1,700 of those allegations.” Former Congressman John Linder has noted that OCR is extremely inefficient in handling its cases.

If OCR were not stretching and rewriting the law, it would probably have fewer complaints to process than in years past, and could make do with a smaller budget than it now has, as I explained earlier. Its budget should be cut, not increased.

How Title IX Became a Policy Bully

By KC Johnson

The Chronicle of Higher Education has received a good deal of attention for putting together a website cataloguing all the Title IX complaints currently pending with the Obama administration’s Office for Civil Rights (OCR). But the site should mostly be seen as a concrete demonstration of how little we know about these complaints, and how poorly the media as a whole has done in covering this issue.

Even before the issuance of the “Dear Colleague” letter in 2011, a marriage of convenience had developed between OCR and campus activists eager to weaken due process for students accused of sexual assault. In contrast to the Bush administration, OCR made clear by implication if not openly, it would welcome Title IX complaints, as a bludgeon to pressure universities to change their policies—if only the activists would file such complaints. And so local activists, increasingly organized by groups such as Know Your IX, SurvJustice, and End Rape on Campus, started filing complaints.

Related: The Hunting Ground—An Ethically-Challenged Tainted Documentary

The Title IX complaint against Yale—which produced the grossly unfair procedures that ensnared, among others, Patrick Witt—was the first example of this new process in action.

The only university that appears to have resisted OCR pressure was Tufts, and it did so only briefly, before backing down. The combined threat of bad publicity and a loss of federal funds—coupled with the fact that many on campus agree with the activists’ anti-due process agenda—has explained the remarkable academic passivity to this federal overreach.

OCR has followed the highly unusual strategy of releasing the names of colleges or universities under investigation, but refusing to release any of the details as to what prompted the Title IX complaint. And so, over and over again, the Chronicle website has lines such as these: “Sexual assault gained attention on the campus when the Office for Civil Rights notified leaders [and, of course, the public] in October that it had launched an investigation.”

OCR hasn’t explained why it has pursued this shaming strategy—whose only purpose seems to be to heighten the frenzy about the campus sexual assault issue and invite the media to assume the worst.

Related: Three Men Unfairly Branded as Campus Rapists

It’s not as if the agency doesn’t eventually release most of the details of complaints. Take, for instance, one of the most recent resolution letters, involving Michigan State University. There, once the matter was resolved, OCR published in some detail (without revealing the complainants’ identities) the initial allegations against the school. (In both instances, accusers claimed that the university had waited too long to investigate the charges, one of which was deemed baseless.)

OCR spares no details in these resolution letters: in the Michigan State case, for instance, the resolution letter included such unique details as the following: “In November 2010, during the investigation, Student A encountered the two male students in a University building where all of the students studied. The two male students were sitting in a private tutoring room with their tutor. While the door was closed, Student A could see the male students through a glass panel in the door. Student A remained outside the male students’ tutoring room for approximately 30 minutes.

When the male students were finished with their tutoring session, they left the room and walked past her to exit the building. Student A called the police to report that the male students had violated their PPOs by not leaving the building when she entered it. Student A stated that the male students were supposed to stay 500 feet away from her, but that the police had told her that the 500-foot rule has exceptions. After this encounter, the male students were assigned to a specific study area in the building that was separate from Student A’s study area and required them to use a separate entrance from the general student body.”

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

(This burden was placed on these two students, who also had been reassigned to a remote dorm on campus, even though the allegation was unfounded.)

This level of specificity, of course, ensures that those who knew both the accuser and accusers on campus would likely now learn about the sexual assault allegation. If the agency plans to release such details eventually, why not right off the bat? Perhaps because it sounded much worse to hear “Michigan State Under Title IX Investigation” than to learn that the allegation was that the school took long to conclude that an unfounded sexual assault allegation was, in fact, unfounded—and that the accused students had done nothing wrong.

An administration committed to transparency should release the details of the allegations, so the public could decide for themselves the seriousness of the Title IX complaints. That the Obama administration has chosen not to do so—as the Chronicle website helps to demonstrate—only compounds its bad faith on the issue of campus due process.


 

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case.

 

Admissions Stacked Against Asians–It’s OK with the Feds

The Department of Education’s Office of Civil Rights has dismissed the longstanding discrimination complaints of Asian Americans, giving Ivy League and other institutions a green light to continue chromatically contouring the results of their “holistic” admissions processes so that applicants who are black or brown or red consistently are admitted with lower academic scores than applicants who are yellow or white. Word of the decision came in a 20-page September 9 letter to Princeton president Christopher Eisgruber.

Although Princeton readily conceded, “It does sometimes consider the race and national origin of applicants for admission,” the OCR concluded that it had not engaged in “patently unconstitutional” racial balancing.

As Roger Clegg has pointed out, the OCR did not deny that Princeton engaged in racial balancing or racial discrimination. It just red that these racial practices are not illegal under  the Grutter vs. Bollinger ruling.

Does Grutter Apply?

What is interesting here is not OCR’s conclusion (when has any Obama administration agency or ally ever concluded that any organization has ever discriminated against Asians or whites?), but that it reached its conclusion without even considering, much less rebutting, the vast breadth and depth of evidence presented by the complainants revealing differential treatment.

For example, as I discussed here, Princeton sociologist Thomas Espenshade, who supports affirmative action, found in his 2009 book that black applicants to selective universities receive “a 450-point ‘boost’ compared to otherwise similarly qualified Asian applicants.” In an earlier article, Espenshade and a colleague demonstrated that if affirmative action were eliminated across the nation, “Asian students would fill nearly four out of every five places in the admitted class” now taken by African-American and Hispanic students.

A Tower of Evidence

A Wall Street Journal article by Daniel Golden, author of The Price of Admission, cited a study of the University of Michigan  by the Center for Equal Opportunity that found “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.” Much more of this sort of evidence showing that Asians have much higher admission hurdles in the Ivy League than other applicants can be found here, here, and here

How, you must wonder, did OCR refute or respond to all this evidence that to be admitted to the Ivies and other selective institutions Asians must have higher grades and test scores than members of other groups? Easy. It did not. Instead, it concluded that Asians had not been subject to discrimination by accepting Princeton’s argument that a few Asians were admitted with lower academic credentials than some rejected non-Asians:

  • “The University … reported, and OCR’s file review confirmed, that less than stellar grades or test scores do not mean that an applicant is automatically foreclosed from admission. OCR in its file review found examples of applicants who did not have the highest quantifiable qualifications, such as grades and test scores, who were nonetheless admitted by the University based on other qualities and the overall strength of their applications. Some of these applicants were Asian.”
  • “The University reported to OCR that the University ‘frequently accepted to the Class of 2010 applicants from Asian backgrounds with grades and test scores lower than rejected non-Asian applicants.’”
  • “The University gave OCR specific examples of Asian American applicants for the Class of 2010 whose grades and SAT scores were not near the top of the range usually seen by the University’s admissions officers, but who nonetheless were offered admission.”
  • “As the University told OCR, regarding the Class of 2010, the University “denied admission to literally hundreds of non-Asian applicants for the Class of 2010 who were valedictorians, and over three-thousand non-Asian applicants with a 4.0 GPA. These non-Asian applicants were not admitted despite the fact that many Asian students who did not have these academic credentials were admitted.”
  • “OCR found no evidence of the University giving an automatic ‘plus’ for identifying as a particular race or national origin; nor did OCR find evidence of applicants given an automatic ‘minus’ for belonging to a particular race or national origin.”
  • “OCR also found no evidence of the University using a fixed formula to weigh an applicant’s race or national origin.”

“In sum,” OCR concluded, “OCR found that the University treated each applicant as an individual, without making an applicant’s race or national origin a defining characteristic. Accordingly, OCR found no evidence of the different treatment of Asian applicants.”

Not Discrimination Because…

In short, OCR concluded that Princeton does not discriminate because

  • Asian applicants are not “automatically foreclosed from admission.”
  • A few Asians are admitted with lower academic credentials than many rejected non-Asians are. [It would be interesting to know how many, if any, blacks or Hispanics were rejected with higher grades and test scores than some Asians who were admitted].
  • The “plusses” awarded to blacks and Hispanics, and the “minuses” in effect awarded to Asians and whites, were not “automatic.”
  • However the University may have prevented the admission of too many Asians, it did not “impose a fixed number or percentage which must be attained, or which cannot be exceeded.”

Unexpected Effects

Since this conclusion comes from an administration notorious for seeing disparate impact discrimination anywhere and everywhere racial outcomes are even ever so mildly disproportionate, calling it hypocritical hardly seems to do it justice. Maybe we need a new word, such as hyper hypocritical. In fact, this OCR ruling is so bad, that it may well have some very good effects. Here are two:

  1. It will buttress the defense of other organizations accused by this administration (or, heaven forbid, similar future administrations) of discrimination. Following OCR’s analysis, for example, a school district accused of racially disparate discipline rates need produce in its defense evidence of only a few occasions when whites or Asians were disciplined for behavior for which blacks were not punished. Ditto for racial profiling by police.
  1. It should persuade Justice Kennedy that Grutter needs to be revisited when the Court considers the return of Fisher v. University of Texas next term. OCR insisted repeatedly that Princeton’s treatment of Asian applicants was legal under Grutter, which was mentioned or quoted 47 times in its 20-page ruling and cited in 27 of its 49 footnotes. I don’t think that conclusion is correct, but every selective institution in the country that subjects Asians to differential treatment (probably all of them except for Caltech) thinks so, as do their enablers in the Obama administration and four Justices of the Supreme Court. If Justice Kennedy believes Grutter allows — or even that it allows so many to believe it allows — the Ivies and others to treat Asians the way Princeton does, he may well conclude that it should be overruled or significantly modified.

One last point deserves attention, among other reasons because it also is involved in the Fisher v. University of Texas case that the Supremes will revisit this fall: how do institutions that strive for racial and ethnic diversity define race and ethnicity?

Need to Be Culturally Aware

“OCR’s review of more than 1,000 application files for the Class of 2010 showed that sometimes the race or national origin of an applicant garnered positive attention (as indicated by comments made by admissions staff on the reader cards),” OCR noted in its Princeton letter; “sometimes it did not.” In OCR’s view, the fact that Princeton did now always award “plus” points for race or ethnicity, or not enough to guarantee admission, means it was not engaged in racial discrimination. In fact, it means its discrimination was egregious, since it attempted to admit only members of racial and ethnic groups who were “culturally aware” of their identity. That is, only “true” blacks and Hispanics need apply.

OCR is so oblivious to this offensive insult that it even provides evidence of it in its letter. Consider the following revealing passage:

For example, for an applicant attending high school in the U.S., admissions staff commented that “Polish heritage is neat but not a hook”; and based on other information in the record, the applicant was not offered admission. On the other hand, admissions staff noted that for a Mexican applicant attending high school in the U.S., the individual was a “cultural add as well”; and based on other information in the record, the applicant was waitlisted…. However, for another applicant of Hispanic national origin also attending high school in the U.S., admissions staff wrote that there was “No cultural flavor” in the application; and based on other information in the record, the applicant was not even waitlisted. For another applicant who was waitlisted, admissions staff wrote that the applicant was a “true American Native . . . One to do.”

Being Polish Doesn’t Count

One would love for Princeton to explain why Polish heritage isn’t “a hook” (are there too many Poles at Princeton?), what its tastes are in Mexican “cultural flavor,” and how it can tell a “true American Native” from a presumably counterfeit one (like Elizabeth Warren, perhaps). What all of this determining the true from the false identity on the basis of “cultural awareness” amounts to the same thing Rush Limbaugh parodies with his reference to the NAACP as in fact the NAACLP, the National Association for the Advancement of Liberal Colored People and that liberals used in opposing President Bush’s nomination of Miguel Estrada to the D.C. Court of Appeals because, as I discussed here and here, “Estrada isn’t Hispanic enough to represent Hispanic interests on the bench.”

Like Princeton, in its original Supreme Court brief in Fisher the University of Texas also asserted, “No automatic advantage or value is assigned to race …, and race is considered ‘in conjunction with an applicant’s demonstrated sense of cultural awareness.” As I pointed out at the time in National Review, Texas does not “explain how admissions officials determine whether applicants have demonstrated a ‘sense of cultural awareness.’”

The current Fisher amicus brief for the Cato Institute makes the same point:

In deposition testimony submitted at the summary-judgment stage, the only thing the University’s admissions representatives would say regarding the way the University uses race is that they value a “sense of cultural awareness.” …. That distinctive phrase — “cultural awareness” — appears a dozen times in the testimony of the University’s admissions consultant, …  as well as repeatedly in the testimony of the University’s associate director of admissions, who is responsible for admissions policy. In fact, it is the only evidence the district court was able to muster when it sought to describe how the University actually uses race in evaluating applications. No other evidence supports any connection between the University’s use of race in holistic review and its avowed diversity goal

OCR’s, Princeton’s, and Texas’s argument to the contrary notwithstanding, the fact that being black or brown is insufficient to gain “plus points” does not mean race or ethnicity is not very important On the contrary, it means that institutions claim the right not only to distribute benefits on the basis of race and ethnicity but also to limit those benefits to those who conform to the “cultural flavors” approved by their admissions offices.

More Advice on Railroading Males in Sex Cases

Not one college or university that I know of has resisted
the notorious “Dear Colleague” letter’ urging a lowering of the burden of proof
in campus sexual assault cases. Reasons for this timidity include the fact that
powerful forces within the academy fully support the attack on due process by
the Department of Education’s Office of Civil Rights, the source of the letter.

A reminder of which way the campus winds are blowing
comes in an email from the Association of Title IX Administrators–yes, the  Title IX bureaucracy is bloated enough to
evolve an actual association like this. In its “Tip of the Week,” the
Association urges colleges and universities to modify their campus appeals
processes in such a way that would almost certainly render successful appeals
less likely. Specifically, the group wants to exclude from the appeals process
the college president–or, indeed, “any
high-ranking university official.” Why? Because “deciding appeals makes [top
administrators] a target personally for a lawsuit. Why serve that prize to the
plaintiff’s attorneys on a silver platter?”

Of course, if the goal is preventing lawsuits,
a better approach would be setting up a procedure that respects the rights of
all parties, including the accused student, recognizing that the truth is more
likely to emerge from a fair process in which all sides’ rights are respected.
But the Association has little interest in that sort of arrangement.

Continue reading More Advice on Railroading Males in Sex Cases