Civil Liberties

Blame the Federal Government for Making College Awful

Rein in OCR



Developments over the last few weeks have brought a lot of attention to the sorry state of the American college campus. This essay in Vox, the ordeals of Laura Kipnis, and the usual spate of college outrage stories provoked condemnations from a diverse range of media commentators.

It's nice that everybody is so upset, but as I explained in a recent column for The Daily Beast, defeating campus censorship will take a lot more than winning hearts and minds. That's because the policies of a runaway federal agency—the Education Department's Office for Civil Rights, under the auspices of Title IX—keep the problem in place:

Kipnis is not the first academic to face such an inquisition. In fact, dubious harassment investigations have become commonplace at American colleges. At the moment, they seem to be drawing a great deal of (deserved) outrage. But they aren't going away simply because everyone is upset about them. Indeed, they are likely to keep increasing in frequency.

We have the federal government to thank for that.

Specifically, the Education Department's Office for Civil Rights—a massive, bureaucratic agency staffed with 650 lawyers. They have one job: punish universities that don't sufficiently police campuses for harassment and discrimination.

Ostensibly, they do this under the charge of Title IX, a 1972 amendment to the Higher Education Act that prohibits gender discrimination at universities that received federal funding. Initially intended to make sure that female student-athletes received as much institutional support as male athletes, Title IX has been reinterpreted by OCR to apply to virtually all human activity that takes place on campus.

Greg Lukianoff, President of the Foundation for Individual Rights in Education, believes universities will continue incentivizing professors to self-censor if they think that's what's required to avoid Title IX investigations. He thinks Congress should intervene:

 "One thing you quickly learn is universities are terrified of Title IX investigations and lawsuits," said Greg Lukianoff, president of the Foundation for Individual Rights in Education, a free speech organization, in an interview with The Daily Beast. "The investigations themselves are really onerous, the lawsuits are expensive, and given the climate on campus, they are really afraid just to be accused of discrimination."

Lukianoff testified before the U.S. House of Representatives judiciary committee earlier this week about threats to academic freedom on campus. His solution is for Congress to require universities to police harassment in accordance with the strict Davis standard, rather than the broad and confusing standard that OCR has instructed universities to abide by.

"We need cultural pushback," said Lukianoff, "but we also need to understand that there is a structural governmental reason for why this stuff is so out of control."

Only when administrators are specifically instructed to maintain harassment policies that comport with the First Amendment will they actually leave professors alone. Until that happens, no number of thinkpieces about PC fascism taking over college campuses will convince administrators that ending a wave of professorial self-censorship is worth provoking the ire of the federal government.

Full thing here.

In the meantime, there's little reason to think the Title IX Inquisition won't continue. There are many members of Congress—including Sens. Claire McCaskill and Kirsten Gillibrand—interested in forcing universities to "do something" about rape, even if that "something" tramples free speech and due process rights while doing very little to address sexual assault. How many members of Congress are interested in reining in OCR, instead?