Op-Ed: When David beat Goliath, once more
In 2011, every college and university in the United States received a “guidance letter” from the Obama administration’s Department of Education declaring that all colleges and universities across the land, from Brown to Berkeley, were required to immediately amend their policies and procedures for responding to any claims of sexual harassment and sexual assault on their respective campuses.
The DOE’s mandated change? Rather than being permitted to follow the long-standing practice of exclusively turning over all claims of criminal sexual conduct to the local police, all institutions of higher education were now required by law to convene panels of faculty, staff and students to investigate and adjudicate all accusations of sexual misconduct.
Oklahoma Wesleyan University (OKWU), a small conservative Christian liberal arts institution located in Bartlesville, Oklahoma (of which yours truly serves as president), was the only school in the nation — yes, the only college or university in the entire United States of America — to raise its hand and say, “No, we will not do this!”
Why was this small little “David” of a college in the northeast corner of flyover country the only one to step forward in front of his bigger, yet cowering, older brothers, and tell the arrogant Philistine giant on the shores of the Potomac to stand down?
A short answer is that “Goliath’s” taunting “guidance letter” was unconstitutional in its construction and asinine in its application. Apparently, Oklahoma Wesleyan was the only institution willing to step forward in a court of law and say so.
Why was the government’s “guidance” unconstitutional? As all who are reading this column should know (at least those who have an education from a school that is still grounded in teaching common sense rather than Common Core), the United States is a constitutional republic and as such, we are a nation of laws and not just a nation of “letters.”
Our Constitution makes it quite clear how our civil parameters are to be set. Our laws are not issued through edicts proclaimed by some king, but rather through legislation controlled by the people. Our cultural rules and regulations are derived from a process clearly given to and solely owned by our Congress of elected representatives. Our laws do not come from some bureaucrat who simply decides to send us a letter.
Furthermore, as a constitutional republic, we the people promise certain rights and protections to all of our fellow citizens. All accused have the right to due process and the right to be presumed innocent until proven guilty. All accusers have the right to privacy and the right to redress when their property or person has been violated.
Any compromise of these rights is unconstitutional and should be resisted at every turn. Any “letter” from the government that tells us to ignore these rights should be laughed at and, forthrightly, returned to the sender with the clear salutation: “Go pound sand!”
In addition to its unconstitutionality, this “guidance letter” was, frankly, just foolish. The entire premise of the DOE’s sagely advice was that somehow it makes sense to circumvent a criminal investigation by convening a kangaroo court of faculty, staff and students who are not professionally trained in even the rudimentary matters of criminal law.
To be quite blunt, the professors and student peers who comprise these newly minted sexual assault panels quite frankly do not know what they are doing. They have no business investigating or adjudicating a crime. In application, this guidance letter makes absolutely no legal or practical sense.
It not only denies the accused his constitutional right to representation as well as his presumption of innocence, but it also compromises the accuser’s fundamental right to privacy by dragging her before a court of her peers and forcing her to be violated again in front of a bunch of novices. This is asinine. It’s immoral. It’s insensitive. It is simply wrong.
In 2016, Oklahoma Wesleyan University secured the legal representation of the Foundation for Individual Rights in Education (FIRE) and, thereby, sued the DOE and the Office for Civil Rights. We alleged that the Obama administration had unlawfully and unilaterally violated the privacy rights of our female students, denied due process to all students, and undercut the role of local law enforcement to effectively investigate and adjudicate reports of sexual misconduct coming from our community.
On Feb. 21, 2018, Oklahoma Wesleyan University agreed to a dismissal of our lawsuit. Our agreement came only after the government backed down and withdrew its “guidance letter,” openly conceding that its prescribed 2011 rules had “led to the deprivation of rights for many students — both [the] accused [who were] denied fair process and victims denied an adequate resolution of their complaints.”
Yes, David can still win — even in the valley of giants — with a few well-placed stones and someone bigger than the government at his back.