An association of university professors in America is charging that the Washington bureaucracy is giving the world of universities a choice: follow the U.S. Constitution or keep the federal subsidies coming onto campuses.
But not both.
The report comes from the American Association of University Professors and prompted Alex Morey, of the Foundation for Individual Freedom in Education to explain what is the problem: “The AAUP report says the Department of Education’s Office for Civil Rights (OCR) – the federal agency tasked with enforcing Title IX – has begun enforcing the law to combat sexual offenses on campus, but has employed an overbroad interpretation of prohibited behavior that sweeps within its ambit constitutionally protected speech.”
He likened it to the Obama administration giving colleges a choice: “Comply with our interpretation of Title IX to keep your federal funding, or uphold free speech, due process, and academic freedom on campus.”
WND has reported extensively on the fight, including just recently when a member of Congress confronted the Department of Education about imposing new rules for sexual assault cases on campus, and threatening colleges and universities.
At issue are the “Dear Colleague” letters issued several years ago by the agency’s Office for Civil Rights that mandate a long list of requirements for colleges handling sexual assault cases or allegations.
Among the demands is that someone can be convicted of sexual assault in a setting in which the defendant has no right to defense counsel. An individual could be convicted based simply on the fact that the assault likely occurred. The standard of proof in such cases simply is that it is more likely to have happened than not.
The letters created consternation across the education community for their demands, including that schools use the lowest standard of evidence, a preponderance of evidence, in such cases that could affect defendants’ lives and careers.
Sen. James Lankford, chairman of the Subcommittee on Regulatory Affairs and Federal Management, earlier sent the letter to John King Jr., the acting secretary of the Department of Education. He instructed the federal bureaucracy to explain exactly what federal law the advisory letters were based on or to make absolutely clear, “in no uncertain terms, that failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or rescission of federal funding.”
The AAUP now has joined the chorus of critics of the Obama administration action, writing:
“Critically, the current focus of Title IX on sexual violations has also been accompanied by regulation that conflates sexual misconduct (including sexual assault) with sexual harassment based on speech. This has resulted in violations of academic freedom through the punishment of protected speech by faculty in their teaching, research, and extra-mural speech,” the report said. “Recent interpretations of Title IX are characterized by an overly expansive definition of what amounts and kinds of speech create a ‘hostile environment’ in violation of Title IX.”
The AAUP report faults the agency demand for a standard of evidence as “preponderance of evidence” instead of the long-used “clear and convincing” standard, which calls for “highly probable or reasonably certain” arguments.
Explained Morey, “FIRE warned repeatedly about the problems these rules could cause when they first came to our attention. Then, when worst-case scenarios started materializing, we reported on them … wrote to the institutions involved, and worked with the faculty and students affected.”
He noted the failings of the federal program include the lack of meaningful distinctions between conduct and speech, those “overly broad definitions,” the “tendency to treat academic discussion of sex and sexuality as contributing to a hostile environment,” and the “lower evidentiary standards.”
The AAUP, in its executive summary, described the “tensions” it said exist right now between the Obama administration’s interpretations of the law and “the academic freedom essential for campus life to thrive.”
“This report finds that questions of free speech and academic freedom have been ignored in recent positions taken by the Office of Civil Rights (OCR) of the Department of Education (DOE), which is charged with implementing Title IX, and by university administrators who are expected to oversee compliance measures,” it said.
The report said Washington’s present enforcement strategies “can actually exacerbate gender and other inequities on campus.”
To fix the problem created under Obama’s tenure, the bureaucracy should start interpreting Title IX as “protecting students from sex discrimination, while also protecting academic freedom and free speech in public and private educational institutions.”
It also should pay more attention to protecting due process.
And the OCR, the professors’ report said, “should refine its compliance process to develop the potential to work with universities to create policies and procedures for receiving and addressing Title IX complaints in ways that address problems of sexual discrimination while also protecting academic freedom and free speech and providing due process for all parties.”
The report said, “Since 2011 … OCR now conflates conduct and speech cases.” It said the OCR followed that by investigating 55 universities for possible violations in 2014, a number that rose to 169 this month.
Further, the tone of the discussions got nasty, the report said.
“OCR’s approach to compliance has become increasingly punitive. … OCR’s recent or current investigations … have taken on an adversarial character, accompanied by an increasing fear that OCR may wield its power to initiate proceedings to withdraw federal funding.”
Lankford noted the criticism of the agency action as “offensive to First and Fourth Amendment protections.”
Lankford’s letter noted not only the infringements on the Constitution, but the Obama administration’s “coercive” practices, referencing a description from a member of the American Council on Education of the OCR as “little more than a bully with enforcement powers.”
The senator’s letter insists on the “specific statutory and/or regulatory language to support each of the ‘Dear Colleague’ letter policies.” Or else make it clear that those are not grounds for action.
The very process that lowered the standard of proof for leveling a sexual assault conviction against a university-charged defendant also has created a new ripple. WND has reported that colleges and universities in recent years have paid out $36 million in lawsuits for improperly handling sexual-assault accusations.
Then along came Colorado’s openly homosexual member of Congress, Rep. Jared Polis, with another idea: throw out students who are likely innocent.
“If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people,” said Rep. Jared Polis, D-Colo.
While only four lawsuits were filed against universities in response to their handling of allegations from 2008 to 2010, between 2012 and 2014 there were 18 cases, representing a four-fold increase, according to a report by Stop Abusive and Violent Environments that is touted as the “most comprehensive listing of campus sex lawsuits ever.”
“Nearly all charge the university failed to comply with fundamental due process requirements in adjudicating the claim,” the organization said.
A Reason.com report said Polis, well known for his openly homosexual lifestyle and for promoting related issues in Congress, says colleges should remove students even if there is only a suspicion of guilt.
“It certainly seems reasonably that a school for its own purposes might want to use a preponderance of evidence standard, or even a lower standard,” he said during a recent House Subcommittee on Higher Education and Workforce Training hearing.
“Perhaps a likelihood standard. … If I was running a (private college) I might say, well, even if there is only a 20 or 30 percent chance that it happened, I would want to remove this individual,” he said.
See the Polis comments: