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The Feds Should Not Regulate Colleges’ Policing of Student Misconduct

The decision by Secretary of Education Betsy DeVos to overhaul the requirements for adjudicating sexual misconduct on campus has been generally praised by the right and attacked by the left. If the optimal solution were for the federal government to impose uniform rules on private colleges, I think I would favor her rules over those of the Obama Administration. But the larger problem is the involvement of the federal government. Private colleges and universities should be allowed to make their own decisions in these matters.

Such autonomy is desirable as matter of general principle and for this kind of decision making in particular. The general principles are clear. Private universities are not state actors. The federal government should not set standards for how their members should behave. Nor should these institutions be required to meet the standards of due process in decisions about whether students or faculty should remain members of their community. Such standards may be a matter of private contract, but contractual terms can differ from one institution to another.

Of course, sexual misconduct can also be a crime, albeit generally a state and not a federal crime. And universities must cooperate with the police in making available relevant evidence when a complaint of a crime has been made. Sexual misconduct can also be a tort, and universities should be required to provide relevant evidence in civil law suits. But neither criminal nor general tort law generally obligates private institutions to a particular set of procedures or standards. Indeed, it provides a reason that institutions might defer to the state to address egregious misconduct.

But besides these general principles, there are particular reasons that the federal government should not dictate to private institutions in this matter. First, even if we thought there was a single national substantive standard and a single national set of procedures that was optimal for all institutions of higher education, there is no reason to believe that we know what the best standards and procedures are now. Discipline in such matters has not been an ongoing enterprise at scale for many years. Premature centralization of uniform rules prevents the learning that can come from observing different rules in operation.

Second, it is not even clear that one set of rules is optimal. For instance, a religious college might want to have harsher rules to enforce its particular notions of sexual propriety or alternatively less harsh punishments that build into its rules notions of forgiveness.

No doubt some will justify immediate government intervention on the notion that there is an epidemic of sexual misconduct on college campuses, one that requires immediate federal intervention and that cannot tolerate a patchwork of private discipline. My friend Heather Mac Donald has raised justified skepticism about such assertions. The greater fear is that such claims will once again justify aggrandizing the role of the state as against private associations. Liberty is lost in moral panic.

Reader Discussion

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on November 29, 2018 at 07:59:48 am

Once anyone buys the notion that Title IX attaches both universities and federal education dollars to torts/crimes by private parties, all sorts of nonsense becomes plausible. Once anyone buys the notion that a mere "Dear Colleague" letter has any legal weight, even more nonsense becomes active. "It's hardly lack of due process for the government to regulate what it subsidizes." Until I went to law school, I thought that was the most important sentence in Wickert, 1942. The basic error is accepting the preposterous claim that Title IX has any effect on private conduct. (Having a US Dept of Ed just compounds the nonsense.)

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Kelly Haggar
on November 29, 2018 at 10:14:00 am

Colleges and Universities are not equipped to address crimes. They certainly have no competence in adjudicating charges. We, the taxpayers, spend substantial amounts equipping police departments, DAs offices, and courts to handle these things. All crimes should be reported to the police, not the the asst. dean for dormitory Z.

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James Mulcahy
on November 29, 2018 at 10:43:54 am

Times change and institutions must change with them. Colleges should no longer be in the business of adjudicating anything, period. It has been conclusively proven that colleges approach too much adjudication with an ideological agenda they no longer even bother to conceal. If any student believes that he or she has been raped, assaulted, robbed, defrauded or anything else, he or she may either bring a civil action against the offender in the local court or ask the local DA to indict the offender. Only the State should be in the business of adjudicating anything, and in the case of colleges not via some administrative substitute but by the actual judiciary. If a man is accused of rape/assault and the local DA believes he is a continuing danger, the DA may detain him pre-trial. Otherwise, the accused is innocent and should not be suspended or expelled.

Look at elementary schools. Do teachers or staff discipline unruly children or do they call the police to deal with it? Yes, that is our world now. So even if a college student is believed to have violated a school's honor code or sexual propriety code, let the school bring a civil action against him, or seek a permanent injunction removing him from campus, or something like that. Yes, it's ridiculous, but we have been brought to this pass unwillingly by fully intentioned progressives. All we can do is see their power grab and raise them real adjudication according to the laws of the land. This is no time for half-measures.

The evolution of our colleges into so many Star Chambers must be decisively and unconditionally halted at once. To all the whining diversicrats on the college payrolls who will protest, all one cay say is, you should have been more careful what you wished for.

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QET
on November 29, 2018 at 11:55:17 am

McGinnis, well intentioned no doubt and in an implied paean to Federalism / subsidiarity, goes a bit too far.
Surely, the Legislative has within its proper authroity the power to regulate some private conduct / practice. Are there not rules for such things as binding arbitration, etc?

Why not simply have the Legislative define and set minimal evidentiary (this spellchecker SUCKS) standards for the Unioversity's adjudicative mechanisms; why not declare that "due process" IS required for these adjudicative actions?
And THEN let the schools proceed in their continuing ideological follies.

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gabe
on November 29, 2018 at 13:14:38 pm

then again, my typing sucks! as evidenced above.

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gabe
on November 29, 2018 at 16:11:40 pm

In law school they told us that due process is a flexable concept that depends upon the circumstances, what is in issue and the severity of the consequences. There’s a citation to that but I’ve forgotten it and am too lazy too look it up at the moment.

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EK
on November 29, 2018 at 16:27:12 pm

I didn't see your comment when typing mine, which says the same thing only with more wind.

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QET
on November 29, 2018 at 17:46:16 pm

Yep - all i am saying is that a minimum level of due process protections ought to be mandated.

current practice is more akin to The Trial of K!!!!!

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gabe
on December 03, 2018 at 09:44:24 am

There is such a thing as contract law. A student gives money to a university in exchange for an education. The university cannot decide to keep his money and then expel him, without a due process. That process has to be fair and impartial.
Otherwise, the student can sue for a refund, plus expenses.

Moreover, the student can sue if he suffers reputational damage.

The same applies to faculty who can be accused; they cannot be fired, reassigned, or dismissed, without a fair process. And they too can sue for reputational damage.

Guilty by reason of accusation is only applicable in the old USSR, revolutionary France, and the Salem witch trials.

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Chavez
on December 03, 2018 at 11:56:12 am

"Guilty by reason of accusation is only applicable in the old USSR, revolutionary France, and the Salem witch trials."

BUT is clearly supported by the ideologues populating the media as evidenced by the main editorial in today's Seattle Times in which we find the Times editorial writers decrying the fact that under Devos's *new* rules, the accused may actually be permitted to have an attorney and, GOD FORBID, to CROSS EXAMINE witnesses.
OMG, what is the world coming to when an a filthy low-life accused of this heinous crime is permitted to CROSS EXAMINE his ACCUSER.

See also latest comments from the ACLU decrying the same protections.

The internal contradictions of the New Secular Rights (libertine?) based Religion is becoming ever more apparent.

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gabe
on December 04, 2018 at 00:06:43 am

[…] The Education Department has published for public comment proposed changes in regulations to Title IX on campus discipline and sexual misconduct; its Obama administration predecessors had decreed major changes in the same law through a “Dear Colleague” letter without public notice or comment. The new proposals differ on some points from draft versions circulated earlier. Cathy Young and Robby Soave provide overviews, and Soave writes on how response from the ACLU left much to be desired. FIRE (Foundation for Individual Rights in Education) has an initial statement (Samantha Harris), a more detailed analysis (Susan Kruth), and a letter to Senate Democrats correcting some misconceptions. And John McGinnis says both sides are getting it wrong: the feds shouldn’t be regulating college misconduct codes in the first place [Law and Liberty] […]

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Image of Title IX campus regs: the new proposal | Overlawyered
Title IX campus regs: the new proposal | Overlawyered
on December 10, 2018 at 05:47:15 am

[…] week I wrote a post arguing that the federal government should not regulate the substance or the procedure of policing […]

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Paying the Piper May Not Justify Calling the Tune

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