Senators should remember that the purpose of the confirmation process is not to confirm the president's nominee: it is to protect the judiciary.
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.