Conservatives should focus on creating the legal space for innovation in higher education, not regulate it more.
While I am often critical of the left, there is one area where one must admire their accomplishments: the left is extremely good at designing institutions that promote their agenda. In fact, some of these ideas have been so good that the right has copied them, with success.
One traditional area where the left has promoted its agenda is through “public interest” law firms. The various law firms, such as the ACLU, bring lawsuits that have had enormous impact. Over time, the right has formed its own law firms which have also had significant effects.
Another area where the left has been extremely successful is with the development of administrative agencies. Such agencies are able to avoid the limits of the legislative and judicial processes to promote their (often left wing) agendas. The right has not quite caught on to what the left is doing, but I have offered a proposal for them. The Congress should establish an administrative agency with the authority to deregulate. Thus, delegation – which has been the motor of regulation – could be used to promote deregulation.
The left though has not simply used agencies, it has also been innovative in extending the reach of these agencies. For example, as implemented through regulations, Title IX of the Civil Rights Act requires recipients of federal funding to appoint at least one person as a Title IX coordinator. Moreover, the Office for Civil Rights appears to require that this person spend their full time on Title IX matters, which means that a school cannot simply use one of their existing administrators, but must hire an additional person for the job. As a practical matter, such persons share the agenda of the Office for Civil Rights and may operate much as an agency official who is employed by the educational institution. Such officials have the added agency advantage of having an interest in the expansion of the agency’s power and mission.
A similar phenomenon occurs in the area of private companies that engage in government contracting. These contractors have an incentive to promote big government, since it enhances their income. Moreover, these contractors can lobby separately in the political process than the agencies that they assist.
The right could use the model of the Title IX coordinator to further its agenda. I don’t like the expansion of government in this way. The best thing to do would be to eliminate these coordinators. But if they are going to exist, there is a strong argument for the right to employ them as well. In my next post, I am going to describe an area where the right might use this power to push back against left wing bias in the universities.