The Hollow Nature of the “Dear Colleague” Threat

KC Johnson
June 27, 2012

An interesting article by Sara Ganim noted that with the conclusion of the Jerry Sandusky trial, attention will shift to civil suits against Penn State and criminal actions against former and current Penn State employees. Probably the most explosive recent report came from NBC, which revealed existence of e-mails among former top university officials (including the former president) on whether not reporting Sandusky to police would be the “humane” thing to do. Before apologizing under pressure from an alumni group, one Penn State trustee expressed concern that the e-mails could suggest a cover-up.

The most striking element of Ganim’s article came in its discussion of whether the Sandusky affair’s aftermath could cost Penn State federal moneys. Ganim noted that even though Penn State promises that all legal settlements with victims will come out of investment moneys, effectively grant money (and tuition) will indirectly subsidize the settlements–since any investment dollar that goes to pay a victim is a dollar that can’t be spent on needed academic purposes. Nonetheless, the federal funds seem likely to keep coming. Ganim wrote, “Terry Hartle, a senior vice president for the American Council on Education, said the likelihood that Penn State is cut off from all of its federal grants is extremely slim.”

There’s no reason to doubt Hartle’s analysis, but it’s worth reiterating its ramifications: it’s plausible that a conspiracy among senior administrators occurred to defy at least state law regarding the mandatory reporting of sexual abuse allegations, and even that sort of university behavior doesn’t rise to the level of what would be necessary to cut off federal funds.

Yet the central premise of the “Dear Colleague” letter is that the “OCR may initiate proceedings to withdraw Federal funding” from any college or university that doesn’t change its sexual assault procedures to remove various protections for accused students. These changes, of course, make it more likely that falsely accused, innocent students will be found guilty.

Set aside the political hollowness of this threat–it’s inconceivable that any administration (much less the current administration, which desperately needs support from college students) would cut off federal funds to any university over investigation procedures, just as it’s inconceivable that even if an administration were so reckless to consider such a policy that Congress would allow it.

Consider, instead, the logical absurdity of the OCR threat, in light of Hartle’s comment about Penn State. There’s only an “extremely slim” chance that a university whose senior leadership might have conspired to protect a sexual predator will lose federal funds. Yet the OCR maintains it will seek to terminate federal funds to any university that doesn’t follow its mandate to weaken due process protections for accused students on campus.

How could anyone take such a threat seriously?