Yesterday, Secretary of Education Betsy DeVos took a welcome step toward restoring a measure of justice and sanity to American higher education. In a speech at George Mason University — and in a follow-up interview with CBS News — DeVos indicated that she intended to withdraw Obama administration “guidance” on adjudicating sexual-assault claims on campus and replace it with a regulatory rulemaking process that is intended to protect students from sexual assault and preserve essential civil liberties.
It’s hard to overstate the legal and moral necessity of this action. First, let’s deal with the law. In 2011, the Obama administration issued a now-infamous “Dear Colleague” letter that required universities to lower the burden of proof in sexual-assault adjudication to a “preponderance of the evidence” standard (50.1 percent probability) without also adequately preserving essential due-process rights such as access to counsel, access to available evidence, and full and fair cross-examination of witnesses. At the same time, the administration commenced dozens of open-ended investigations of universities — acting on claims that they were insufficiently committed to protecting women from rape and applying the new guidance to evaluate university policies.
These actions were fundamentally lawless. No American administration has the ability to rewrite the law by merely issuing a letter. At the very least, the Obama administration should have conducted a notice-and-comment regulatory rulemaking process in accordance with the Administrative Procedure Act. Even then, the regulation would still have to be consistent with governing federal statutes and comply with the Constitution. But Obama’s Department of Education ignored these steps and instead violated the APA, Title IX, and the Constitution in an ideologically motivated trifecta of campus tyranny.
The result was entirely predictable. Campuses, fearing the loss of federal funds and pushed by their own internal constituencies who pushed ludicrous and discredited claims that up to one in five female students would be sexually assaulted during college, created a vast, morally outrageous, and oppressive system of kangaroo courts. According to a study released this week by the Foundation for Individual Rights in Education, 73.6 percent of America’s top universities don’t guarantee students a presumption of innocence, fewer than half require that fact-finders be impartial, and a full 58.5 percent of institutions don’t “provide students with a meaningful opportunity to cross-examine witnesses” in cases of sexual misconduct. And this is a partial list of university legal failures. All told, 45 of the 53 rated colleges received a “D” or “F” for their commitment to due process.
But those are dry statistics. The individual stories are harrowing, and DeVos provided startling examples in her speech. Schools have punished students even though the alleged “victim” claimed that nothing happened. They’ve investigated and punished professors and students for engaging in First Amendment–protected speech. They’ve refused to allow students to introduce exculpatory evidence. And they’re facing an avalanche of lawsuits from aggrieved students as a result. Brooklyn College professor K. C. Johnson has compiled a list of at least 60 university litigation defeats since the Obama administration issued its “Dear Colleague” letter, and the list often expands by the week.
Schools have been caught between the hammer of an overzealous and lawless Department of Education and the anvil of private litigation. Their choice? Follow the Constitution and potentially lose government funding. Comply with Obama-administration directives and potentially face the wrath of a federal judge.