Could the Education Department’s Title IX overreach be nearing an end?
Throughout the Obama administration (but ramping up since 2011) the Education Department’s Office for Civil Rights has instilled fear at colleges and universities across the country. Terrified of negative media attention resulting from investigations – or worse, a loss of federal funding – schools have eschewed due process and tilted the playing field in favor of those who accuse others of sexual assault or harassment.
That might be coming to an end.
The current culture stems from a 2011 “Dear Colleague” letter from OCR that required schools to more forcefully adjudicate claims of sexual misconduct, while offering little to no due process for accused students.
Colleges adopted the OCR guidance with the energy of an inquisitor, and had little reason to believe anything would change. On the contrary, most inside the liberal bubbles of media and academia assumed Hillary Clinton would win the presidency, so it appeared OCR’s reign of terror would be put on steroids starting in 2017. Clinton had tweeted during the campaign that we must believe every “survivor” of sexual assault.
Clinton’s nonsensical statement — if someone survived something, there would be little question that they would be believed — made sense only in the context of who Clinton was actually speaking to. The terms “victim” and “survivor” have become conflated with “accuser,” even though they are not synonymous.
Clinton also included similar statements on her campaign website, but those were removed shortly after Juanita Broaddrick – who accused Clinton’s husband of sexual assault – returned to the spotlight. It was never clear whether Broaddrick was the catalyst for the removal, but the timing was curious.
For those working at OCR, Clinton’s loss was a huge blow.
At an event held last week to honor the accomplishments of OCR, attendees were solemn, according to a report from the Weekly Standard’s Alice Lloyd, who noted “tearful sniffling and prayerful entreaties to stay strong and keep the faith” at the event.
Attendees praised the 66,000 investigations conducted during the Obama administration and the 34 “policy guidance documents” issued in the past eight years. The documents mandated rules for sexual interactions, gender segregation as it relates to bathrooms and transgender students and racial equity in disciplinary cases.
Education Secretary John King told the audience that “the work of OCR is just critical to the mission of schools to save lives.”
Former Assistant Secretary Russlyn Ali – who resigned following criticism of the 2011 Dear Colleague letter – provided a video statement to the audience. “OCR’s job is to protect young people, and young people and their teachers and communities need to have faith that OCR will respond to them. So call on it,” she said.
Changing the culture
While employees at OCR may be mourning President-elect Donald Trump’s victory and are fearful that their jobs and mission are nearing an end, it should be noted that the current culture on campus is not likely to change anytime soon.
While Trump didn’t make explicit demands for Title IX reforms during his campaign, it is assumed by many on both sides of the issue — based on his aversion to “PC culture” and promises to rollback President Barack Obama’s executive overreach — that he will scale back or reverse some of the Dear Colleague letters of the past decade.
Even if that assumption proves correct, addressing inequities on college campuses could subsumed for a time by higher priority agenda items. Education Secretary-designate Betsy DeVos is an advocate of school choice, which seems to be a more central focus.
And when a Trump administration does get around to overturning past Dear Colleague letters and directives, the culture on college campuses is so ingrained that it could still take years if not decades to reverse.
Even without federal demands, colleges and universities still fear negative media attention. And no media attention is more negative than when a female student claims she was raped and that her school did nothing to punish her alleged rapist.
It has now become acceptable for such a heinous crime to be handled by schools instead of law enforcement, and that’s unlikely to change. New rules from a Trump administration that demand, at the very least, due process for accused students will take years – and many investigations – to implement. The 2011 Dear Colleague letter did not result in immediate changes to policy, and neither will anything changing it.
Many of those changes took effect only after schools were accused of being hostile toward accusers.
It would be the same if due process were required, or even if schools were told to hand accusations off to law enforcement.
Attorney Justin Dillon, who has defended dozens of accused students, said changing campus culture is a greater challenge than changing federal policy.
“I think the pressure on schools in these cases is largely threefold – from the government, from the press, and from potential lawsuits by both accusers and the accused,” Dillon told Watchdog in an email. “So even if you dial back the government pressure, the other two pressures will likely remain.”
He added: “That said, I am hopeful that schools will have more to fear from OCR investigations that care about a lack of due process and less to fear from accusers who file complaints simply because they couldn’t prove their allegations to what is all too often a kangaroo court.”