Conservatives should focus on creating the legal space for innovation in higher education, not regulate it more.
False accusations of rape are no joke. Just ask the Duke lacrosse team or the University of Virginia fraternity brothers who were smeared in Rolling Stone magazine. Such high-profile travesties of justice are the tip of an iceberg that has now been documented in detail by KC Johnson and Stuart Taylor, Jr.
The atmosphere on many American campuses is thick with intimidation of anyone who might dissent from a poisonous version of feminist orthodoxy. Strident accusations and demands would not have been enough, though, without widespread acquiescence in politically driven lies about sexual assault. College bureaucrats, the media, and cowardly politicians, including some very prominent Republicans, have all contributed to a culture in which simple procedural fairness is treated as though it were part of a “war on women.” This problem will not be solved with a stroke of anyone’s pen. But some significant steps can be taken very expeditiously by the Trump administration.
President Obama’s Department of Education has coerced the nation’s colleges and universities to set up kangaroo courts in which any defendants who may have been falsely accused will find it difficult to defend themselves. This is supposedly a response to an epidemic of rapes on college campuses, but that epidemic is a myth created by feminist ideologues. The Trump administration can reverse the worst of the Obama administration’s policies, and it can do so immediately.
The Title IX amendments to the 1964 Civil Rights Act require schools that receive federal funding to refrain from discriminating on the basis of sex. The Supreme Court’s decision in the 1999 case of Davis v. Monroe County Board of Education held that peer-on-peer sexual harassment is covered by the ban on discrimination when it is severe or pervasive enough to create a hostile environment.
Title IX is enforced by the Department of Education’s Office of Civil Rights, and schools do whatever OCR tells them to do. In one very unusual case, Tufts University tried refusing to comply with OCR’s demands, but the school promptly caved when threatened with a reduction in federal funding.
What OCR wants from the schools is publicized primarily through in terrorem enforcement guidelines. The basic text that affects issues involving claims of sexual violence on campus was adopted in 2001, at the very end of the Clinton administration. This document requires schools to have well-publicized and effective grievance procedures, including notice and impartial investigation of complaints, and to take steps to provide remedies for violations of the statute.
It was in 2011 that OCR issued its now infamous “Dear Colleague letter” to all schools that receive federal funding. This letter purported to supplement the 2001 guidelines, and it was followed three years later by another document providing additional details. Unlike the Clinton guidelines, which were left in place by the Bush administration, these new pronouncements did not go through a notice-and-comment process. Nor did they acknowledge the alterations they were making in the policies that had been in place for a decade.
In crucial respects, however, the two enforcement regimes are radically different. Here are examples of those differences:
First, many schools have traditionally used a clear-and-convincing standard of proof in administering student discipline, and this was allowed under the 2001 Clinton guidelines. The Obama administration demanded that schools lower the standard to preponderance-of-the-evidence for cases involving allegations of sexual violence.
Second, unlike the 2001 guidelines, which expressly pointed out that public schools must comply with the due process requirements of the U.S. Constitution, the 2011 Dear Colleague letter appears to subordinate these requirements to OCR’s view of what is required by Title IX.
In theory, public schools are obviously required to provide due process before taking adverse actions against accused students, no matter what OCR may say. Less obviously, private schools may be bound by the same requirement because they are acting as enforcement agents for the government. And OCR can be very aggressive in using a school as its coerced agent.
Not surprisingly, schools tend to be more impressed by OCR’s threats than by the theoretical possibility that a judge might someday find that they erred by complying with an OCR ukase.
Third, OCR does not even require the most basic element of due process, namely notice of the charges and a hearing, and it has actively promoted inquisitorial systems that assign a single person to investigate, prosecute, and judge accusations of sexual violence. See, as an illustration, Doe v. Brandeis University.
Fourth, OCR, in another denial of fundamental fairness, strongly discourages cross-examination of complainants by accused students, and even suggests that allowing the accused to exercise this basic right of cross-examination may itself violate Title IX.
Fifth, schools are forbidden to leave the investigation of alleged felonies to law-enforcement authorities.
Sixth, OCR not only requires schools to discipline those found guilty of sexual violence, but threatens to sanction a school unless it prevents a recurrence. This creates a strong incentive for schools to expel students and publicize their alleged crimes, even when the allegations have never been reported to the police and could never lead to a criminal conviction. Complainants are therefore free to make false accusations without the risk that they will get caught lying to the police.
Since issuing its 2011 Dear Colleague letter, OCR has put more than 200 schools under formal investigation, and the spirit of that letter is reflected in what schools have done to avoid the government’s wrath. Not only have they adopted biased procedures, but many have trained their disciplinary authorities to be biased against accused men.
One school instructed school officials that if someone feels victimized by accusations of misconduct, or responds to accusations in a persuasive and logical manner, he is showing signs that he is an abuser. Another school trained its officials to believe that sex-offenders are overwhelmingly white males. At yet another, an official declared that “regret equals rape.”
OCR deals with many sensitive issues besides this one, and a thorough reform is a long-term project that will be a major challenge for the Trump administration. But certain things can be done right away. The Obama administration’s decision not to use notice-and-comment rulemaking when it created the current enforcement regime may have been illegal, but it does have its good side, in that what was done by administrative fiat can be undone the same way.
Measures that could be adopted immediately include:
- OCR could announce that it is withdrawing the 2011 Dear Colleague letter, the 2014 supplement, and all enforcement letters that relied in any way on the new policies set forth in those documents. Doing so would restore the 2001 guidelines from the Clinton administration. The Bush administration did not find it necessary to revise those guidelines, which generally left schools with the flexibility to exercise what the 2001 document calls “the good judgment and common sense of teachers and school administrators.” Returning to the pre-Obama status quo would be a big and immediate improvement over the current state of affairs.
- At the same time, OCR could remind schools that Title IX prohibits discrimination against both women and men, including individuals who have been falsely accused.
- OCR could also caution schools that a failure to establish policies and processes that effectively protect accused students from false accusations may violate Title IX.
Taking these steps would only be a start, for inertial forces in the schools will in some cases need to be countered by a resolute OCR. But there is no good reason not to start, and start now.
Donald Trump’s campaign for President was unique in many ways. Not least was the spirited manner in which he promised the nation some relief from traditionally spineless Republican collaboration in politically correct injustices. Moving quickly to rein in the Education Department’s campus rape campaign would be a salutary down payment on that promise.
 20 U.S.C. 1681.
 526 U.S. 629 (1999).
 177 F. Supp. 3d 56 (D. Mass. 2016).