The Obama administration stretched Title IX, a simple statute banning discrimination on the basis of sex in American schools and colleges, to an alarming degree with Education Department's Civil Rights Department's infamous "Dear Colleague" of 2011.
The letter offered guidelines for dealing with accusations of sexual misconduct on campus that pretty much eliminated due process for the accused (almost always male students). "Guideline" may be the wrong term in that non-compliance could cost the institution federal funds.
The letter came with a campaign against a campus "rape culture" that was hyped by statistics, frequently debunked, that one in five women on campus are victims of rape. If the statistic were accurate, it would be a crisis–as it is, however, it has led to hysteria.
The Obama administration used this hysteria, it has been suggested, to stir up support among its feminist base. So now that there is a new administration, it should be easy to restore due process, a cornerstone of western jurisprudence, and promote a healthier, fact-based atmosphere on campus, right? Alice Lloyd of the Weekly Standard says not so fast:
Until this very way of thinking itself changes, legal experts say, there's little reason to hope rolling back the guidance will actually effect reform. What, if anything, Secretary Betsy DeVos decides to do to restore due process protections to these unfair proceedings won't change cultural attitudes. The Office for Civil Rights could recommit to fairness in a subsequent guidance document, condemn procedural violations of due process and—like the Obama administration before them—publish its own wall of shame: A list of all institutions under investigation for stripping students' inalienable rights.
But, really, what difference would it make? I asked Brett Sokolow, CEO of the National Center for Higher Education Risk Management and the Association of Title IX Administrators, after the election and again last month. "Those structures won't be dismantled overnight, given the nature of bureaucracy and the ponderous path to change that characterizes modern universities," Sokolow said back then, adding that changing university culture is like trying to turn a cruise ship. Plus, we can count on the rape culture narrative to kick in as more and more Title IX decisions crop up in the courts: "80 percent of federal judges are Obama appointees, and are likely to feel strongly about the need to enforce Title IX if a vacuum in administrative enforcement results," he said, two and a half weeks after the election.
His more recent comments to me suggested a path forward for enhanced equal protections, however. "I think that clear OCR guidance on due process would begin to assert the balance needed on campuses. Already, the OCR decision regarding Wesley College has begun that process."
Back in October, the Office for Civil Rights determined that Wesley College in Dover, Delaware, had failed in the fair treatment of accused students. (The Department of Education's statement cited "several incidents in which the college provided no evidence that accused students were interviewed before receiving interim suspensions, some on the same day.") To Sokolow, this censure meant change was coming. "It was a clear signal to colleges from OCR that balancing the rights of all parties is essential."
The problem is kangaroo courts in which due process for the accused is less important than making sure the college doesn't risk federal money by not bringing in a guilty verdict.
A bill to require that all allegations on campus are reported to law enforcement–which is more equipped to investigate such accusations than college administrators–passed in Georgia's lower house but is said to be unlikely to make it through the higher chamber.
The author of the bill, Georgia state Rep. Earl Ehrhart, met with education secretary Betsy DeVos, and, while the meeting was said to have been cordial, Lloyd reports that it was "inconclusive." Let us hope that Secretary DeVos recognizes that law enforcement, not college tribunals, are the proper venue for sexual accusations. Even this, however, won't be an instant solution:
There is no simple legal or legislative fix, prominent attorney Andrew Miltenberg has learned. He's earned a reputation as the "campus rape lawyer," having advised and defended scores of young men accused of sexual assault since 2013, when he argued in a case against Vassar that Title IX must also protect accused men from gender discrimination. Miltenberg, who's currently suing the Department of Education, takes his clients' struggles to heart—he has two children in college, a boy and a girl. He worries.
But only lately, within the last several months, he told me, has he realized the magnitude of what he and his clients are up against. After deposing investigators, Title IX coordinators, and college students, in lawsuits that have gone deep into discovery, he's learned how far the bias goes—how far beyond the reach of any new guidance or law. "There has become an institutional culture at most universities that they're not going to be able to legislate out," he told me.
As with so many Obama administration innovations, we might find ourselves stuck with them longer than we hoped.