Three questions about the legality of the Obama Administration’s anti-sexual assault on campus polic

Kudos to Yale law professor Jed Rubenfeld for a thoughtful piece in theNew York Times explaining why the Obama Administration’s decision to force campus kangaroo court disciplinary tribunals to go full marsupial with regard to sexual assault allegations is a bad approach to reducing sexual assault. Special kudos for Rubenfeld for writing this even though writing on this particular topic in such a prominent venue will inevitably bring out (and has inevitably has brought out) the smear brigade.

I agree with around 90% of what Rubenfeld writes, and I encourage folks to read the whole piece. Curiously for a law professor, though, he mostly leaves out the question of whether the relevant rules are lawful. Here are three questions suggesting they may not be.

(1) the Department of Education’s Office of Civil Rights created new nationwide standards for adjudicating claims of sexual assault by a combination of a 2011 “Dear Colleague” letter and a 2014 “Questions and Answers” publication. Can OCR in effect promulgate draconian new and very specific rules regarding how to deal with sexual assault on campus (on pain of universities losing all federal funding) without going through the notice and comment process?

(2) In Davis v. Monroe county Bd. of Ed., 526 U.S. 629 (1999) the Supreme Court held that the only relevant obligation school administrators have with regard to sexual harassment is to not show deliberate indifference, and to “merely respond to known peer harassment in a manner that is not clearly unreasonable.” The same or similar standard should logically apply to peer sexual assaults, which the OCR also polices as sex discrimination under Title IX. If so, OCR is implicitly arguing that before it stepped in, almost every university in the United States was dealing with claims of sexual assault in a clearly unreasonable manner. Can that be right?

(3) OCR totally forbids university disciplinary panels from considering an accusing student’s sexual history with anyone other than the accused (see F7 of the questions and answers). Not a single jurisdiction in the United States has such a draconian a “rape shield” rule, and for good reason–a blanket exclusion of such evidence that applies even in the (unusual) cases that such evidence is highly relevant violates the accused’s due process rights. Is there some reason that forcing universities to apply this rule doesn’t violate students’ due process rights?

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA.

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