Bad things can happen when an agency (like the Education Department) throws caution to the wind and regulates based on slanted media coverage from National Public Radio, rather than facts and evidence.
Checks and balances exist for a reason. When agencies impose new obligations on the institutions they regulate, they are supposed to first give the public notice of their proposed rule, and an opportunity to comment on it. This requirement, mandated by the Administrative Procedure Act, enables members of the public to point to legal or factual mistakes that may have precipitated the agency’s proposed rules.
But under the Obama administration, the Education Department has ignored these requirements. In “Dear Colleague” letters and “guidance” documents issued without any prior notice or comment, it has imposed on colleges a series of detailed, prescriptive, and controversial rules for responding to allegations of sexual harassment or assault—rules very much at odds with the deferential tenor of the Supreme Court’s Gebser and Davis decisions.
Those rules include procedures, time tables, and evidence rules that sharply contrast with those previously used by many colleges for all categories of offenses. This has pressured colleges to create a costly, specialized bureaucracy on campus to handle sexual offenses, rather than using one disciplinary system for all offenses.
In recent investigations, the Education Department has interpreted this “guidance” as mandating “interim measures” against accused students who have yet to be found guilty of anything, and as restricting certain evidence of innocence that would be permitted in court, as law professor David Bernstein noted at the in the Volokh Conspiracy, and I describe in the Daily Caller.
This unfair micro-management of college discipline has led to a series of costly lawsuits against colleges by students claiming they were unfairly expelled as a result. For example, in Wells v. Xavier University, a judge allowed a student’s lawsuit claiming the college used unfair procedures to expel him to appease the Education Department’s Office for Civil Rights, where I used to work.
But it now appears that the Education Department’s rules micromanaging college discipline were precipitated by a deceptive NPR report about the University of Wisconsin’s purported mishandling of a sexual assault claim. That report, jointly produced with the Center for Public Integrity, made statistical claims that would later be debunked, and ignored evidence of accused students’ innocence that any judge—female or male, liberal or conservative—would take seriously, and would be admissible in any sexual assault prosecution in America. (See, e.g., State v. Garron (2003).)
That’s the upshot of a commentary last Friday in the The Daily Beast by the American Enterprise Institute’s Christina Hoff Sommers, describing the litany of misleading claims in NPR’s horribly slanted “investigative reporting series” entitled “Sexual Assault on Campus: A Frustrating Search for Justice.”
Imagine how the Education Department’s rules might be fairer and better if the Education Department had taken its time and provided notice and the opportunity for comment, rather than just issuing them out of the blue.
The complainant in that case, Laura Dunn, now sits on the White House Task Force on Sexual Assault (which in January 2014 advocated excluding certain kinds of evidence of innocence), even though her allegations have proven to be internally inconsistent and contradictory, and were apparently found to be unsubstantiated back in 2008 by career staff at the Office for Civil Rights.
Rather than waiting for the legally-required “notice and comment,” the Education Department hastily released new rules regulating colleges in a “Dear Colleague” letter on April 4, 2011, to coincide with a White House PR event on that date featuring Vice President Biden, an event set on the anniversary of the complainant’s alleged assault. As Dunn would tell the Christian Science Monitor: that event “was my justice.”
Those rules ordered the nation’s colleges to stop using a clear-and-convincing standard of evidence, even though a Yale Law Journal article once observed that “Courts, universities and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.”
The White House Task Force and the Education Department have also sought to undermine due process by restricting cross-examination even when it is needed and a college would like to permit it. The White House Task Force Report declares that “the parties should not be allowed to personally cross-examine each other.” Less sweepingly, the Education Department’s guidance says (p. 31): “OCR strongly discourages a school from allowing the parties to personally question or cross-examine each other.” This ignores the fact that the Supreme Court calls cross-examination the “greatest legal engine ever invented for the discovery of truth.” (See Lilly v. Virginia (1999).) In a handful of campus sexual assault cases, such as Donohue v. Baker (1997), judges have ruled that cross-examination was necessary in a college proceeding to test the credibility of the accuser.
Hans Bader is a senior attorney at the Competitive Enterprise Institute.