Title IX

Six Years Ago Today, Obama's Education Department Made All Sex Unsafe on Campus

The Office for Civil Rights' 'Dear Colleague' letter changed everything.



Today marks six years to the day since the Education Department's Office for Civil Rights released the infamous "Dear Colleague" letter obligating universities to investigate sexual assault and harassment.

The letter that launched the recent phase of fact-free investigatory proceedings and one-sided tribunals was just 19 pages long. It began with the assertion that sexual violence is a form of sexual harassment and is therefore prohibited by Title IX, which mandates gender equality at educational institutions that receive federal funding. In its letter, OCR also asserted that the sexual violence problem on college campuses was out of control, as evidenced by the 1-in-5 statistic.

"The statistics on sexual violence are both deeply troubling and a call to action for the nation," wrote then Assistant Secretary Russlyn Ali.

We know, of course, that the 1-in-5 statistic is misleading at best: while many women admit to experiencing nonconsensual contact at colleges, they don't see themselves as rape victims and very few are subjected to forced sex. But even if the sexual assault problem on campus was as severe as OCR claims, this would not justify any reduction of due process protections.

Unfortunately, the Dear Colleague letter established three important precedents that would harm the quest for fairness in college disciplinary proceedings.

First, it enshrined the preponderance-of-the-evidence standard. OCR's letter explicitly prohibits universities from using a higher standard of proof to determine responsibility in sexual misconduct disputes.

"Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX," wrote Ali.

If this had been the only change to misconduct hearings, it might not have been a complete disaster. Accused students who are afforded other fundamental rights—the right to an attorney, the right to confront the accuser, etc.—might still be said to have received due process, despite the lower burden of proof.

But OCR stopped short of recommending such protections.

"While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties," wrote Ali. "OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing."

OCR thus passed on the opportunity to guarantee that accused students would be competently represented and enjoy the absolute right to cross-examine their accusers. The letter speculated that "allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment." But the entire purpose of the hearing is to determine whether the victim is alleged or not—administrators can't know whether there is a hostile environment to perpetuate until they decide the case.

Lastly, the letter established the right of complainants to appeal an unfavorable outcome—a departure from the norms of Western justice, which traditionally hold that not-guilty verdicts are final.

In the six years since the letter was released, OCR has doubled and tripled and quadrupled down on its general sentiments, reaching settlement agreements with dozens of universities stipulating that due process will take a backseat at campus tribunals. The universities, for their part, have risen to the challenge of expelling more alleged rapists, and have initiated investigations into scores of male students—often athletes, often people of color—who engaged in drunken sex with female students. That these hook-ups were sometimes deemed consensual by all participants involved matters little to Title IX investigators who read OCR's guidance. It is the job of the university, not the alleged victim, to determine whether a sex crime has taken place.

An increasing number of legal experts admit that there's something deeply disturbing about the approach championed by OCR. The American College of Trial Lawyers recently expressed concerns about the preponderance of evidence standard. The Association of American University Professors, the Foundation for Individual Rights in Education, and the faculty of Harvard Law School are similarly concerned about Title IX enforcement. It's an issue that President Trump's Education Department should certainly revisit—and soon. Six years is a quite a long time.

For more on this subject, read Northwestern University Professor Laura Kipnis's account of the Title IX witch hunt against Peter Ludlow.

NEXT: A.M. Links: Trump Administration Reaches Out to Freedom Caucus on Obamacare, Suspected Chemical Gas Attack in Syria, St. Petersburg Subway Bombing 'Possibly a Suicide Attack'

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. In the words of a former commenter here, Hyperbolic Montenegro:
    “Ignore. Culture war. Not a real thing.”

    Who’s laughing now, HM!?

    1. I missed the part where Robby is actually calling for anything other than a ‘revising of guidance’.

      One one hand, we’re supposed to take this errant regulatory behavior super-seriously… but on the other hand, criticisms made of the agency in this magazine turn out to be wholly toothless, despite the dramatic stage-setting.

      You’d think that anybody who paid attention to this destructive intervention by a rogue federal department would call for – at a minimum – defunding the entire office, and reconstituting them with an extremely narrow mandate
      (if they actually serve any other necessary function – something i’ve never seen demonstrated)

      Even better – just scrap the office altogether. Students ‘civil rights’ are their own interests and i think they themselves should know what needs defending rather than some distant agency that has arbitrarily converted itself into – as robby said yesterday – the “Federal Rape Police”

      Further – why not just *repeal Title IX*? woman have been the majority of college-graduates for decades now.

      There’s this incessant yammering about the problems of college students @ Reason… yet when it comes down to actual policy-arguments about “What to do?” about said federally-generated problems, the best they can suggest is ‘better Top People’.

      1. Better top people are at least better than worse top people.

        Repealing title IX would be great, but is probably as much of a non-starter as repealing the public accommofdations part of teh Civil Rights Act.

        I’m not sure that stating the strong libertarian position over and over again is really what a current events blog needs more of. The comments take care of that just fine. This sort of reporting seems to be about what might be practically possible in the short term.

        1. Better top people are at least better

          that’s so sad i can’t even muster the energy to mock it.

          even a “sorta half-assed” libertarian recognizes that the source of government-created problems isn’t “who’s in charge”….

          ….its government constantly expanding its own mandate and using its intrusive powers to meddle in increasingly wider areas of human life.

          The only way you kill it is by stripping govt of those powers – by cutting off the tentacles as they grow; not by switching who happens to be warming the driver’s seat.

          I’m not sure that stating the strong libertarian position over and over again is really what a current events blog needs more of.

          What i described isn’t “The Strong Libertarian Position” = Its the fucking bare minimum. Its common sense. Its injecting obvious conclusions into public-debate.

          i.e. “Expanding the Overton window”

          The comments take care of that just fine.

          Do they now? Everyone except the cheerleaders are gone.

  2. Is this yet anther thing that made Obama a complete disaster for the world? What a POS.

  3. Saviors need victims. Without victims, who would need to vote for saviors?

    1. The Rape Whistle Maker analogy;

      You have a business interest in Rape. When Rape decreases, you go out of business.

  4. I continue to be amazed at how little pushback there was against this attack against justice. In a stroke of the pen, the Obama Administration declared that rape was a mere administrative offense, punishable not by imprisonment, but mere expulsion. What was once part of the trifecta of crimes serious enough to potentially warrant life imprisonment or the death penalty, within the space of an inkish flourish Rape had been dumbed down the level of playground hijinks.

    1. I continue to be amazed at how little pushback there was against this attack against justice.

      I continue to be amazed that, having once recognized a genuine problem, that the best this magazine can come up with is to have some some spineless bouffant make gentle-recommendations about ‘revising guidance’.

      1. Can we all curl up beside the fire so once again you can tell us stories about how much you hate Robby? I really miss the good old days.

        1. I have nothing against Robby. I think he would be better suited writing for a different audience. Just like Shikha or Chapman.

          If there were anything worth defending about his writing, you’d make that defense. But there isn’t, and you can’t.

    2. “Mere expulsion”? Are you serious? Being expelled from college as a result of one of these kangaroo trials can destroy a young man’s prospects for his future and cost him millions of dollars in lost future earnings and wasted tuition and college loan payments. It’s not life in prison or the electric chair, but it is a very severe punishment.

      1. But if it discourages people from going to college at all, so much the better. You can’t be expelled from where you ain’t. & once nobody attends college, nobody’ll be expected to.

        1. A few decades from now, it might be that way. For the near future, I would expect credentialism to become an even greater factor than it is now in employment decisions and career success, as employment continues to decline and good jobs become more scarce. Despite what Mike Rowe says, for now, most young people face a choice between going to college or a lifetime of low-paying dead-end work.

  5. Teenagers of both sex live in the same dorm. Get drunk with people they don’t know very well.

    Who could possibly guess that bad things might happen?

  6. The fewer people we have attending colleges, & the fewer colleges are operating, in the USA, the smaller this problem is. Seems it just takes care of itself. Burst the college bubble already.

  7. Good commentary as per usual from Robby.

    “Six Years Ago Today, Obama’s Education Department Made All Sex Unsafe on Campus”

    The title left out two words. It should read: “Six Years Ago Today, Obama’s Education Department Made All Sex Unsafe For Men on Campus.”

    I recommend:

    “How We Waded Into The Sexual Harassment Quagmire: Digging Out With True Equality” http://malemattersusa.wordpres…..-quagmire/

    This may be the most thorough analysis you can find of what I think has for many decades been the sexes’ most alienating and destructive behavioral difference. I believe this difference results in much of what is called sexual assault of women.

    1. I should add that liberals’ decades-old war against campus men (all men, actually) has helped hugely to produce this:

      “Republicans don’t have near as big a woman problem as Democrats have a man problem.” -Wall Street Journal

      And this:

      “The whole Democratic Party is now a smoking pile of rubble: In state government things are worse, if anything. The GOP now controls historical record number of governors’ mansions, including a majority of New England governorships. Tuesday’s election swapped around a few state legislative houses but left Democrats controlling a distinct minority. The same story applies further down ballot, where most elected attorneys general, insurance commissioners, secretaries of state, and so forth are Republicans.” http://www.vox.com/policy-and-…..ile-rubble

Please to post comments

Comments are closed.