Department of Education regulations forcing colleges and universities to create pseudo-court systems to handle campus sexual assault are interfering with schools’ core mission to educate, according to a bipartisan report from a task force for the Senate Health, Education, Labor and Pensions Committee.
The report was designed to offer solutions for easing regulatory burdens on colleges, which have exploded in recent years.
“Over time, oversight of higher education by the Department of Education has expanded and evolved in ways that undermine the ability of colleges and universities to serve students and accomplish their missions,” the report said. “The compliance problem is exacerbated by the sheer volume of mandates — approximately 2,000 pages of text — and the reality that the Department of Education issues official guidance to amend or clarify its rules at a rate of more than one document per work day.”
This onslaught of regulation has made it difficult and costly for colleges to comply. One example given was the evolving narrative of Title IX, originally enacted 40 years ago to ensure women were treated equally on campus.
Regulations relating to Title IX, the report says, have only been formally implemented three times: in 1975, 2000 and 2006. But since then, the Department’s Office for Civil Rights, which oversees Title IX compliance, has been creating new regulations stemming from the infamous 2011 “Dear Colleague” letter regarding campus sexual assaults.
“While OCR strenuously maintains that the letter does not add requirements to applicable law, the reality is that these standards impose serious additional responsibilities and break new policy ground,” the report said.
These new requirements are for colleges and universities to adjudicate accusations of sexual assault — a separate justice system that has been labeled a “kangaroo court” — which has led to lawsuits from both accusers and the accused that the system is biased.
The HELP report is careful to note that colleges should make their institutions safe for students, but the way OCR has gone about doing so has lacked transparency.
“To be clear, the issue is not the substance of the requirements — colleges and universities must maintain a safe learning environment for all students free from discrimination,” the report said. “Rather, it is that OCR, through sub-regulatory guidance, has created new enforcement standards without any opportunity for public comment.”
Those new standards lack any semblance of basic due process. Accused students are not allowed to cross-examine their accusers and are limited from providing exculpatory evidence. Investigators lack professional training and the ability to subpoena evidence. Neither party is allowed legal representation to speak on their behalf at hearings. Further, young men are being expelled based on little more than “he said/she said” accusations. And the most accusers can expect from a “guilty” verdict is that their rapist will be kicked off campus — not sent to jail.
The HELP report suggests a formal comment period from all interested parties — that would include schools and advocates for victims and due process.
That would be a big step toward creating an actually fair, unbiased process for disciplining students accused of sexual misconduct. It can’t replace the proven method of letting the police handle accusations, but rolling back the clock on the out-of-control regulations set forth by OCR would be a good start.
