By Stuart Taylor and KC Johnson at National Review
When it comes to due process on campus, Republicans in Congress, who campaigned on vows to rein in the Obama administration’s abuses of executive power, have largely acquiesced in its bureaucratic imposition of quasi-judicial tyranny. For more than four years, the White House and the Education Department’s Office for Civil Rights (OCR) have used an implausible reinterpretation of a 1972 civil-rights law to impose mandates unimagined by the law’s sponsors. It has forced almost all of the nation’s universities and colleges to disregard due process in disciplinary proceedings when they involve allegations of sexual assault. Enforced by officials far outside the mainstream, these mandates are having a devastating impact on the nation’s universities and on the lives of dozens — almost certainly soon to be hundreds or thousands — of falsely accused students.
One might have expected an aggressive response by House Republicans to such gross abuses of power — including subpoenas, tough oversight hearings, and corrective legislation. Instead, most of them have been mute. In the Senate, meanwhile, presidential candidate Marco Rubio of Florida, Judiciary Committee chairman Charles Grassley of Iowa, and rising star Kelly Ayotte of New Hampshire have teamed with Democratic demagogues Kirsten Gillibrand of New York and Claire McCaskill of Missouri in co-sponsoring a bill that would make matters even worse.
The authors of this article are not partisan critics. One of us is an independent, the other a Democrat who twice voted for Obama and donated to his presidential campaign. But when the president and his party go rogue, it is the duty of the loyal opposition to blow the whistle and fight back.
The administration’s crusade against due process for students accused of sexual assault has relied on Title IX of the Educational Amendments Act of 1972, a brief, unadorned provision that simply prohibits sex discrimination in federally funded educational institutions. It has most famously been used against gender imbalances in college athletics and, more recently, in scientific and technical fields, but in the act’s first 39 years, no administration claimed that Title IX gave the federal government authority to micromanage university disciplinary procedures.
Barack Obama and his appointees adopted a radically different approach. In April 2011, the OCR sent college administrators a 19-page “Dear Colleague” letter that ordered colleges and universities that receive federal funds (as almost all do) to change their disciplinary procedures regarding sexual assault. Each of the required changes — reducing the burden of proof in campus sex cases (and only in those cases) from “clear and convincing evidence” to “preponderance of the evidence,” introducing a form of double jeopardy by allowing accusers to appeal not-guilty findings, and demanding accelerated investigations that hamper the ability of accused students to gather evidence to defend themselves — increased the likelihood of guilty findings.
Worst of all, the letter “strongly” discouraged institutions from allowing an accused student to cross-examine his accuser. And a 2014 missive from the OCR threatened schools that allow such cross-examination — “the greatest legal engine ever invented for the discovery of truth,” as the Supreme Court has repeatedly called it — with a charge of “perpetuat[ing] a hostile environment,” which is illegal.
Over the four and a half years since the first letter, the White House and the OCR have escalated, in ways too numerous to detail here, their attacks on due process — and on freedom of speech and academic freedom — in the guise of punishing sexual harassment. No federal law or court decision provides a grain of support for such bureaucratic tyranny. This situation cries out for legislative oversight, but, despite controlling the House since 2011 and the Senate since this January, the Republican response to the administration’s lawless evisceration of campus due process has been puny.
Congress has subjected Obama’s two heads of the OCR — assistant secretaries Russlynn Ali and, since 2013, Catherine Lhamon — to just six minutes of challenging questions, all in a June 2014 oversight hearing, when Tennessee senator Lamar Alexander quite effectively pressed Lhamon to explain how her agency could make law by merely sending “detailed guidance for 22 million students on 7,200 campuses.” Stressing that the “guidance” could be no more than “your whim,” Alexander asked: “Who gave you the authority to do that?”
“With gratitude, you did, when I was confirmed,” shot back Lhamon, oozing disdain for the former secretary of education. Six committee Democrats defended Lhamon, and no other Republican senator even attended the hearing.
Apart from Alexander’s efforts, virtually the only congressional resistance to Obama’s campus agenda has come from House Republicans Matt Salmon (Ariz.), Pete Sessions (Texas), and Kay Granger (Texas). They recently introduced the Safe Campus Act, which would commendably cripple the Obama administration’s efforts to channel rape cases away from law enforcement and into college disciplinary proceedings. It would also ensure somewhat fairer hearings. This proposal has the support of the National District Attorneys Association, civil-liberties advocates, and families who say their sons have been harmed by false accusations and railroaded by campus kangaroo courts.
In mid September, the House Education and Workforce Committee convened its first hearing on campus rape. North Carolina Republican Virginia Foxx, who chaired the hearing, sounded like the OCR’s Lhamon in her opening remarks, citing the resoundingly discredited claim that one in five women is sexually assaulted while at college. Even though the majority Republicans selected three of the four witnesses, only one, Joseph Cohn of the Foundation for Individual Rights in Education, unequivocally defended campus due process.
The hearing’s climate was captured by Representative Jared Polis (D., Colo.), who asserted: “If there are ten 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 ten people.” In a scene that would have made the framers of the Constitution weep, campus-rape activists in the hearing room applauded this effusion. (Polis later issued a half-hearted retraction.)
Meanwhile, powerful Senate Republicans have jumped onto Obama’s anti-due-process bandwagon. Six of them, led by Rubio, Grassley, and Ayotte, joined Gillibrand, McCaskill, and four other Democrats in co-sponsoring the benign-sounding but dangerous Campus Accountability and Safety Act (CASA).
These Republicans are keeping bad company. Gillibrand, for example, published two statements branding a Columbia University student a “rapist” even though he had been cleared by the university and the police had found no basis for charging him. McCaskill, ignoring two generations of progress in the way police and prosecutors approach rape allegations, oddly asserted that “the criminal-justice system has been very bad, in fact much worse than the military and much worse than college campuses, in terms of addressing victims and supporting victims and pursuing prosecutions.”
With key Republicans along for the ride, McCaskill and Gillibrand produced a bill designed to advance the administration’s agenda. Its language presumes the guilt of all students accused of sexual assault by repeatedly calling accusers who have not yet substantiated their claims “victims,” without the critical qualifier “alleged.” CASA would also order colleges to provide a “confidential advisor” for these “victims,” with no comparable help for the accused. And it would require universities to publish data on the outcomes of their campus sexual-assault cases (which only Yale does now), apparently in the hope that doing so will invite Title IX complaints against any college that finds an insufficient number of accused students guilty.
Further, McCaskill has said that CASA, by making adjudication processes uniform for all institutions, is designed to help “remove the underpinning of . . . lawsuits” by accused students who say they were railroaded. No wonder McCaskill believes that “victims” might see themselves as “better off doing the Title IX process” than going through the criminal-justice system.
The Washington Examiner’s Ashe Schow asked each sponsoring senator’s office how CASA would ensure due process for accused students. An Ayotte spokesperson declined to answer Schow’s questions, justifying the senator’s co-sponsorship by repeating the canard that one in five college women is sexually assaulted.
A Rubio spokesperson replied, “This bill does not address this issue.” When asked whether college officials or law enforcement would have the most authority to investigate allegations, the spokesperson responded: “The victim will have the most authority.” This reflected (at best) an astonishing misunderstanding both of the need for impartial adjudication of such serious charges and of the fact that at the investigative stage there is no “victim”; there are an accuser and an accused.
Why have Republicans abandoned their duty to expose and oppose Obama’s disregard for basic fairness on the matter of campus tribunals for alleged sexual assault? Part of the reason is fear of the “war on women” demagoguery that greets any Republican challenge to any Obama-administration policy involving gender. In addition, some social conservatives seem intent on taking advantage of the current alarm about sexual relations on campus to try to restore traditional gender norms there — a lost cause. And protecting the civil liberties of people accused of violent crimes has never been a high priority for most Republicans, who (like most other Americans) remain ignorant of both the railroading of innocent students and the radical nature of Obama’s campus agenda. Most have been misled by the administration’s allies in politics, academia, and the media to believe three myths: that a campus rape epidemic exists, that it’s getting worse, and that almost all accused males are guilty.
None of these things is true. While rape is a very serious problem for women in their late teens and 20s, the best data show that roughly one in 30 (not one in five, as Obama and his allies claim) women are sexually assaulted while in college; that they are safer on campus than off; that the campus rape rate has plunged since 1997; and that false or likely false accusations are not uncommon, albeit impossible to quantify with confidence. On the last point, accusations against innocent students seem to be increasing at colleges, where accusers are urged by campus sex bureaucrats, professors, and activists to report dubious or simply false allegations. Institutions of higher learning also tend to define rape and sexual assault far more broadly than either the criminal law or common understanding, as in the suggestion that sex with a partner who in any degree is intoxicated constitutes sexual assault.
Far from acquiescing in “rape culture” as sensationalized by the media, America’s universities are in the grip of a dangerous presume-guilt-and-rush-to-judgment culture, driven by the Obama administration. An entire generation of college students is learning to disregard due process and the dispassionate evaluation of evidence. And dozens of clearly or at least probably innocent students, whose cases we will detail in a book we are now writing, have been branded sex criminals, been railroaded out of their universities, and seen their hopes and dreams ruined.
Their persecutors include Amherst, Brandeis, Colgate, Columbia, Harvard, Miami of Ohio, Michigan, Michigan State, Middlebury, Occidental, St. Joseph’s, Swarthmore, the University of California–San Diego, the University of North Dakota, the University of Tennessee–Chattanooga, Vassar, and Washington and Lee, among others. And given the opacity of the college disciplinary process, those cases are almost certainly just a small part of the total, as hundreds of other similar injustices remain veiled in secrecy.
How can Republicans improve on their lamentable acceptance of these Obama-driven abuses? Electing a president protective of campus due process would be the best hope, but it also seems the most unlikely. No Republican presidential candidate has spoken up for campus due process, and Senator Rubio appears to be part of the problem, not the solution. Of course, Hillary Clinton likely would make things even worse.
Taking the Obama OCR to court also offers only limited hope. While the courts have upheld some lawsuits filed against universities by falsely accused and wrongly expelled students, the obstacles to suing federal agencies such as the OCR for abusing their power are almost insuperable. And pro-due-
process legislation, such as the Safe Campus Act, is probably doomed in the Senate even if it can clear the likes of Virginia Foxx in the House.
But there is still much that an awakened Congress and state governments can do to limit the damage, to mobilize public opinion in support of fairness, and to prevent demagogues such as Gillibrand and other Obama allies from doing to the criminal law what they have already done to campus discipline. Senator Alexander has made a start by focusing on drunk-with-power bureaucrats wildly overreaching their authority. In a September 23, 2015, hearing, he extracted from Amy McIntosh, a deputy assistant secretary of education, the admission that “guidance that the department issues does not have the force of law.” This after more than four years during which the OCR had enforced its “guidance” letters to universities as though it did have such authority.
Republican-run oversight committees should put Catherine Lhamon on television at every opportunity. Members could start by asking her about her recent, preposterous suggestion that because colleges “are equipped to investigate . . . plagiarism or drug dealing,” they are competent to police alleged sex crimes. Plagiarism is not a crime, let alone a violent one. And it’s hard to imagine how colleges could even begin to investigate a serious criminal offense such as drug dealing.
Oversight committees also should demand documents from the administration regarding the origins of the 2011 “Dear Colleague” letter. How much was the White House involved? Was this part of Obama’s political strategy of mobilizing the Democratic base by aggressively using executive power to promote their causes? Did anyone worry about the certainty that innocent as well as guilty accused students would be expelled as rapists? What did the document’s drafts say?
Why has the OCR told universities that they can’t require sexual-assault accusers to report their complaints to police? Do any other federal agencies discourage reporting felony offenses to law enforcement? Does the administration hold the view that police are hostile to victims? Why the almost exclusive focus on alleged victims at colleges, and not on the far more numerous, less privileged women for whom the police are the only recourse?
As for the criminal law, the prestigious American Law Institute is now considering proposals to criminalize sexual relations as they have been routinely and consensually practiced throughout human history. Whenever a woman claims that she did not give “affirmative consent,” either verbally or with unequivocal nonverbal cues, to a recent or long-past sexual encounter that her partner reasonably considered consensual, that would be rape. As has been seen at colleges that have adopted the standard, the effect of the change would be to shift the burden of proof from the accuser (and the state) to the accused, undermining the presumption of innocence in the process.
Will Republicans wake up in time to stop such lunacy?