Why Revoking Obama’s Sex Assault Letter Won’t End Campus Witch Hunts

Even as the courts continue to find them unconstitutional, universities appear likely to follow Obama’s rules until they’re given legally binding regulations.
Adam Candeub

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The Obama administration’s 2011 “Dear Colleague” letter presented universities, colleges and other higher education institutions with an ultimatum: create Title IX kangaroo courts to adjudicate claims of campus sexual assault, or face an end to all federal funding. The schools and their “diversity” offices complied, in some cases cheerfully, and if President Trump wants to reverse the damage done by the letter, he’ll have to do more than simply revoke the letter.

Universities were instructed to treat treat sexual assault broadly in the letter from Obama’s Department of Education, essentially to get involved in any and all sexual conduct between students. Further, they were encouraged to abandon in their systems the protections Americans enjoy in the court system when accused of criminal acts, including the right to effective counsel, cross-examination of witnesses, object to false or prejudicial evidence, and a high standard of proof.

 The letter’s non-binding recommendations, like some sort of cultural Marxist CIA, “activated” fellow travelers in the universities to regulate campus sexual relations. Universities expelled countless young men on flimsy accusations. Many of those men in turn sued universities for depriving them of due process — and the courts have generally looked favorably on their claims, at least when they come from state universities.

The Trump administration has rescinded these much-derided Title IX sexual assault guidelines. Secretary of Education Betsy DeVos has vowed to open a rulemaking procedure to set forth legally binding guidelines. But will liberty return to the universities, and due process and fairness to student disciplinary proceedings? And will the insanity of university bureaucrats adjudicating assault allegations disappear and die?

Sadly, to quote “The Princess Bride,” the insanity is only mostly dead.

And, that means it is more than slightly alive. Why? Because the nature of the administrative state and its ideological allies in higher education will together ensure nothing much will change. The new regulations will take years to be promulgated and settle after an inevitable court challenge. In the meantime, the universities will cling to the Obama-era non-binding rules. The Title IX regulation serves as an admonitory tale to show how the administrative state and its sympathizers can so easily evade democratic oversight to promote their agenda in hidden ways.

Title IX’s original purpose was simply to guarantee better funding for girls’ sports, commensurate with their interest. But, the Department of Education and university bureaucrats perverted this mandate. First, it became an edict requiring equal funding for boys and girls sports, thus eliminating many boys’ teams and leaving many girls’ teams rosters unfilled. In addition, Title IX, mirroring development in Title VII, which prohibits sexual discrimination in employment, also began to mandate elimination of sexual harassment on campus. And Obama’s Department of Education took the next step in the “Dear Colleague” letter by requiring universities to come up with sexual assault guidelines.
University administrators seemed happy to be “forced” to grow their bureaucratic empires and hire more investigators and Title IX resource coordinators.

The Obama administration’s decision to regulate sexual assault in this way was a huge and bizarre legal step. Sexual harassment for the most part includes things that are generally legal outside an employment context. Men can say sexually demeaning things to women who are on the street or guests in private homes without legal, if not social, consequence. But sexual assault is already illegal. The criminal law handles rape, fondling, and all unwanted physical contact. What the Obama administration’s letter did was require universities to create shadow courts to enforce already prohibited behavior.

Beyond instituting duplicative enforcement mechanisms, the letter was notable for its unlawfulness. Agency regulations adopted after a rulemaking procedure require public comment and permit subsequent court challenge, and they have the force of law. In contrast, the “Dear Colleague” letter, later formulated as a “policy guidance,” never became a formal, binding regulation, and so avoided public input and judicial oversight. Instead, the policy guidelines constituted a threat — follow our rules or we’ll withhold your funding. “You don’t like that?” the Obama administration said, “See ya’ in court.”

And not surprisingly, there was not a single college or university in the country that said: “We won’t set up these stupid pseudo-courts. We believe in due process and fairness and freedom for our students! See you in court, Department of Education.”

Instead, the universities welcomed these rules. And why not? University administrators seemed happy to be “forced” to grow their bureaucratic empires and hire more investigators and Title IX resource coordinators. With government-guaranteed student loans funding the whole show, universities can always pass on these costs to students. Working hand-in-glove, the universities helped the Obama administration stuff the university staffs with more fellow-travelers committed to regulating and politicizing sexual relations.

The Obama administration demonstrated the power of agencies to transform culture without a democratic mandate in another “Dear Colleague” letter about transgender students sent to schools in May, 2016. This DOE letter instructed educational institutions to let transgender students use the bathrooms and locker rooms corresponding to their stated sex identification, and made referring to an individual using the biologically correct pronoun a civil rights offense.

The position outlined in this second letter has little public support outside of leftwing cultural hideouts. But the universities again cheerfully complied, taking advantage of their already well-staffed diversity bureaucracies.

Notice the absurdity of this situation. Unmoored from its original intent involving girls’ sports, Title IX had become a well-funded mechanism to shove leftwing ideas alien to most Americans down their throats. Both public and private institutions were forced to sing — and fund — the same song.

Then, there was the unexpected election of Trump. DeVos revoked the transgender letter as one of her first acts as head of the DOE. She has also recently revoked the sexual assault letter. In its place, the DOE has published “Interim Guidance” and has promised to initiate a rulemaking procedure that will provide definitive (and legally binding) requirements for sexual assault proceedings on school campuses.

Though hardly perfect, the Trump administration’s guidance is a marked improvement over MSU’s current guidelines. For instance, the guidance mandates equal access to evidence and witnesses. Yet, the guidance still fails to guarantee certain basic protections, leaving key matters up to the discretion of universities. For instance, it gives universities the option of adopting a clear and convincing evidence standard, while allowing universities to maintain the less protective “preponderance of evidence” standard that the “Dear Colleague” letter required.

Have universities vowed to abandon their old procedures based upon the revoked “Dear Colleague” letter in favor of the Interim Guidance? No. Even as U.S. Courts of Appeal continue to find them unconstitutional, universities appear likely to keep the Obama-era rules until the DOE forces their hand with legally-binding regulations that could take years to come.

“At this time, we will continue to follow our current polices and procedure for addressing matters of sexual misconduct on our campus,” University of Michigan spokeswoman Kim Broekhuizen said in what has been a typical response to DeVos’s revocation. “We will be following the rulemaking process closely.”

The hypocrisy here is staggering. When the Obama administration publishes its non-binding letter, the universities act as if the instructions are law. They choose not to challenge the letter in court. But when the Trump administration revokes that letter and replaces it, the universities yawn. They continue Obama’s policy, and happily spend the money defending those policies in court as more and more judges rule them unconstitutional.

Perhaps, the right word is not hypocrisy, but collusion. Democratic government and academic bureaucrats have the same political agenda and the same economic and social incentives to further each other’s goals. Even when the Democrats are out of political power, their allies in academia continue their work.

They receive good press. After all, they couch their arguments in terms of campus safety for women — which is of course a proper goal.

The university at which I teach, Michigan State, has yet to decide what to do about the Obama-era sexual assault guidance. When DeVos revoked the transgendered guidance, MSU announced that the revocation “does not have any immediate impact on the way we interpret our policies or provide protections on our campus.” And that seems to be the reaction of other universities.

So what can be done to force the hand of the wayward academic bureaucrats to follow the U.S. Constitution absent endless trips to the federal courts? When DeVos announced the Interim Regulations, she also promised the DOE will initiate a rulemaking process for binding regulations that the universities would have no choice but to follow.

This DOE rulemaking is a chance to return due process and common sense to campus. The obviously correct policy is to refer allegations of criminal behavior to those trained to deal with it: the police and the court system. Until there is an arrest, college administrators should use their common sense to ensure the safety of students involved in allegations of sexual assault. Administrators should take immediate protective action if necessary, perhaps after consulting law enforcement. Once the criminal justice system has done its work, universities can do theirs, either by expelling guilty students, who for whatever reason are not imprisoned, or by imposing some other sanction.

But, the universities and their diversity bureaucrats will be fighting for their lives in this rulemaking. And, they receive good press. After all, they couch their arguments in terms of campus safety for women — which is of course a proper goal.

In response, DOE in its rule making must be made to see that kangaroo courts will not be an effective bulwark against sexual assault. Experience shows that university bureaucrats can protect the rights of neither accused nor accusers — and, in the end, unjust procedures create little more than contempt for the law. The new DOE regulations can solve this problem by making universities first take immediate measures to protect students, and then use the tried and true methods for judging those accused of crimes: the courts and the U.S. Constitution.

Adam Candeub is a professor of law at Michigan State University where he teaches administrative law and directs its IP and communications law program.