February 1 2017
Stuart Taylor and KC Johnson have coauthored a terrific piece in today's Washington Post on how the Obama administration reinterpreted Title IX to give the federal government authority to set rules for dealing with sexual assault accusations on college campuses. (If you don't subscribe to the Post, this might make it worthwhile to buy the paper today.)
The directive reinterpreting Title IX came April 4, 2011, with no advance warning and on the same day former president Obama announced that he was running for a second term, in the form of a "Dear Colleagues Letter" to education officials. It profoundly changed the way acusations of sexual assault are handled.
Johnson and Taylor write:
This “Dear Colleague” letter, issued by the Office for Civil Rights (OCR), told all of the more than 7,000 colleges that receive federal money to use the lowest possible standard of proof, a preponderance of evidence, in sexual assault cases (though not in less serious matters such as cheating and noise violations).
The letter required universities to allow accusers to appeal not-guilty findings, a form of double jeopardy. It further told schools to accelerate their adjudications, with a recommended 60-day limit. And, perhaps most important, OCR strongly discouraged cross-examination of accusers, given the procedures that most universities employed.
The Obama administration never explained the timing of this document’s release. Nor did it explain how a plainly worded, 40-year-old anti-discrimination law had become a fount of such highly controversial mandates.
This letter undermined due process for the accused, making it difficult, if not impossible, to demonstrating innocence. The Obama administration has never put forward a convincing justification for the policy or for how Title IX can be reinvented in this fashion.
Johnson and Taylor's piece explains how a 1972 statute stating that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance” was reinvented. It began in the Clinton administration but advanced dramatically with the 2011 "Dear Colleagues" letter.
Johnson and Taylor argue that it was not a rise in the percentage of sexual assaults on campus (which remained stable from 1995 until the release of the letter) but the election of Barack Obama that led to the new policies on campus assault as defined in the "Dear Colleagues" letter, Specifically, it was the Obama administration's use of identity politics:
First, as with any modern Democratic administration, strong advocates of identity politics occupied key bureaucratic positions, which they could use to implement regulatory policies outside of rigorous congressional oversight. In a 2010 interview, OCR’s new head, Russlynn Ali, all but begged sexual assault accusers to file Title IX complaints against their colleges, promising that “we will use all of the tools at our disposal including referring to Justice or withholding federal funds or going to adjudication to ensure that women are free from sexual violence.”
Second, the Democratic defeat in the 2010 midterm elections focused Obama’s attention on how identity politics could rally his base. This model had worked well in one of the few major Democratic victories that year, the Colorado Senate race. So the administration took high-profile positions in favor of marriage for same-sex couples, permitting “dreamers” to remain in the United States and mandating contraceptive coverage in Obamacare. The “Dear Colleague” letter, which appealed to feminists and campus activists, reflected this broader campaign agenda — except that, unlike these other Obama initiatives, it initially encountered no legislative criticism.
In the end, OCR’s selective interpretation of Title IX combined elements of a few past resolution letters that would increase the chances of guilty findings with unrelated items (such as discouraging cross-examination) that accomplished the same purpose. The effects have been disastrous, leaving the courts as the most reliable protector of accused students’ rights.
Johnson and Taylor have a second column tomorrow that will focus on relevant recent court decisions.