Secretary of Education Goes After College Kangaroo Courts

Defanging the Title IX Dragon

Just in case you missed it as the holidays ramped up, Betsy DeVos, the Secretary of the Department of Education, finally made good on her promise to slay the Title IX dragon, the misguided and terrible policy that was meant to curb sexual violence on U.S. campuses but has caused untold damage to students.

In a knee-jerk reaction to statistics on sexual violence on campus, the Obama administration’s Department of Education decided it would aggressively enforce Title IX of the Education Amendments 1972 Civil Rights Act against sexual harassment and violence on campus. And according to the Washington Monthly, “If press reports and the chatter of professors and administrators are to be believed, the results have been disastrous: students accused of rape being tried by kangaroo courts; a prominent feminist professor subject to interrogation by lawyers for writing an op-ed criticizing new restrictions on sex between teachers and students; and even a tenured professor being fired for saying “Fuck no” in class. Another example of well-intentioned government regulation gone horribly awry!”

The Office for Civil Rights in the Department of Education, however, withdrew the Obama administration’s now infamous Dear Colleague Letter of 2011 in September 2017. The controversial letter had outlined a set of procedures that all educational institutions receiving federal funds under Title IX must use to “investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct.” The Obama rules were not only unclear, but simply went too far, requiring that sexual misconduct cases be tried under a “preponderance of the evidence” standard instead of the higher standard of “clear and convincing evidence,” which is what a criminal court of law uses.

Worse, the letter permitted the accuser who lost at the university or college tribunal to bring appeals to overturn the initial determination. It strongly discouraged the use of cross-examination by parties or their attorneys, and refused to allow covered institutions to involve law enforcement officials in investigations of criminal conduct. In essence, Obama’s misguided “Dear Colleague” letter turned school administrators into officers and judges under an unconstitutional law. And the results were disastrous.

Students were denied knowing what they were being accused of and even who was accusing them before being summoned to tribunals, denied the aid of an attorney, and any right to cross-examine their accuser. Many students were unfairly expelled or punished with no real evidence presented or disputed. Following expulsion, other colleges were almost sure to deny an accused student entry based on prior academic misconduct. What could have been a bright future for an unfairly accused student was forever changed by a college kangaroo court that stripped the student of their most fundamental right to face their accuser in a court of law.

In the waning days of November, DeVos finally unveiled her long-promised proposal to amend the Title IX regulations that have been stripping students of their constitutional right to due process and allowed arbitrary school administrators to make dubious and sometimes draconian decisions over an accused student’s life. Not surprising, as soon as the Department of Education released its announcement to tackle the Title IX beast, the progressive left began to twitch in agitation, with Obama’s right-hand gal and former Senior Advisor Valerie Jarrett leading the way by tweeting:

 

 

But Jarrett’s rape statistics are indisputably and seriously flawed. Right after Obama took office in 2012 and tapped Jarrett to spearhead the White House Council on Women and Girls task force, Robert Mueller’s FBI and the Justice Department redefined the criminal definition of rape—for the first time since 1920. The revisions included same-sex assaults and a definition beyond actual intercourse, all of which didn’t actually change the nature of actual rape but did change the way local police departments reported crime statistics.

Caroline Kitchens, a Duke graduate and researcher at the American Enterprise Institute, also pointed out that the statistics used by the Obama Administration didn’t back up the idea that there is a rape culture on American campuses. Kitchens wrote:

“Statistics surrounding sexual assault are notoriously unreliable and inconsistent, primarily because of vague and expansive definitions of what qualifies as sexual assault. Christina Hoff Sommers of the American Enterprise Institute explains that the study often cited as the origin of the “one in five” factoid is an online survey conducted under a grant from the Justice Department. Surveyors employed such a broad definition that “‘forced kissing” and even “attempted forced kissing” qualified as sexual assault.”

Besides taking issue with the ridiculously inflated rape numbers, DeVos’ proposal goes a long way in addressing much of what is wrong with Title IX, such as defining what sexual harassment actually is under statute, specifying the conditions that activate a recipient’s obligation to respond to allegations and impose a general standard for the sufficiency of a recipient’s response. The accused will now have the right to know what they are accused of and to have an attorney or third party cross-examine the accuser—all of which had been previously denied.

Most important, any claim of sex discrimination under Title IX cannot deprive a student of his or her individual rights that would be otherwise guaranteed under the U.S. Constitution, prohibit the Department’s Office for Civil Rights (OCR) from requiring a recipient to pay punitive damages as a remedy for a violation of any Title IX regulation and eliminate the requirement that religious institutions submit a written statement to qualify for Title IX religious exemptions.

Comments on the proposal are due January 28, 2019. For more specifics on the proposal, you can view the full PDF on the Federal Register. Colleges were never meant to become the parents of students or the vehicle in which to police and enforce U.S. criminal laws, so the proposal doesn’t go far enough. It should be entirely eliminated. We already have in place laws and a justice system that prosecutes and punishes sexual crimes. It is high time for universities to get about the business of actually educating students. Less activism and less attention to what goes on between two consenting adults who happen to be in college would be a great start. #Reignwell

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