Law? We Don’t Need No Stinkin’ Law

Rape being a crime, some colleges defer to the police, but in so doing, these schools, it is now claimed, violate federal guidance on how to enforce the Education Act of 1972’s Title IX—which states, “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.”

Under Obama, the Department of Education’s Office of Civil Rights defined sexual assault as a form of sex discrimination that colleges must address according to its particular rules. These rules amount to a federal “guidance” without the strength of law, but they might as well be law: Disregarding guidance, a school risks the denial of government funding, which nearly all schools—public and private—depend on in some part. And indeed, the executive posse reiterated its aim to punish schools who don’t handle these cases by White House rules: The Post has Biden saying he’d like to “take away their money.”

If this echoey intel feels familiar, it might be because it’s not the first instance of this White House stretching Title IX beyond its legal authority. Campus activists and congressmen alike express concern that the “climate” at colleges and universities permits, nay, even promotes rape—although the acceptable term is “sexual assault,” more broadly defined to include a range of encounters deemed non-consensual. As it happens, the campus climate argument—that a “rape culture” pervades American colleges—also allows a politically convenient circumvention of the peculiarities of Title IX.

It all started when a case brought against Yale University in 1977 established that sexual harassment constitutes discrimination “on the basis of sex,” and, invoking Title IX, the ruling held that colleges’ responsibility in discrimination cases extends to sexual harassment and sexual assault—situations that, to quote the law, deny women “the benefits of” college. As generations worked their way through school, findings of future cases narrowed Title IX’s applications to a more nuanced, field-tested definition of academic institutions’ liability.

One Supreme Court decision in the 1990s held that an unreported incident cannot constitute a Title IX violation, and another that student-on-student assaults aren’t violations unless the institution knows what’s afoot and doesn’t act to remediate. When it comes to the Department of Education’s guidance on campus sexual assault, however, these rulings don’t apply—the rulings pertain to cases of harassment, DoE guidance says. Nevertheless, two then-law-students at Yale (one of them a Title IX activist to boot) who co-wrote a Politico Magazine article in 2014 explaining the need for the DoE guidances, referred to these two cases from the ’90s as having “refined exactly what is required of schools by way of handling sexual harassment and assault to ensure that all students can learn free from gender-based discrimination.” And the authors’ invocation of the since-retracted Rolling Stone article of that year—in which “Jackie” falsely accused fraternity brothers of ritual gang rape, and reporter Sabrina Rubin Erdely and editors somehow bought every word of the literally incredible story—stands as a reminder of the damage a culture of blinding victim-bias inflicts on the system of blind justice. But still, their interpretation of Title IX sticks closer to the law than the Education Department’s guidance.

It would seem the natural limitations to sweeping action under Title IX are precisely what necessitated a slippery and subjective argument that “campus climate” is to blame and a “rape culture” pervades on campuses. The 2011 “Dear Colleague” letter from the Department of Education and the 2014 White House Task Force on sexual assault insist universities investigate claims of sexual assault regardless of the police proceedings and set up means of reporting assaults on campus so that victims don’t have to go to the police. They used the widely debunked statistic that “one in five” college women experience sexual violence to uphold the idea of a pervasive rape culture—it’s “deeply troubling and a call to action for the nation,” the letter reads. The public campaign coinciding with these guidances also uses subjective language to stir an emotional uproar and signal universal, cultural complicity: The White House calls its campaign “It’s On Us.” In an emotional letter to the victim of so-called Stanford rape case, Biden referred to our fallen culture. (The incident, by the way, occurred off-campus, the victim was a non-student, and the perp was expelled from Stanford.)

The Department of Education insists the White House initiatives and its 2011 and 2014 sexual assault guidances aren’t law, a position reiterated to me by a DoE aide. These programs, she explained, while not carrying the authority of law have succeeded in influencing state legislatures to adopt policies granting victims right to counsel, requiring memorandum of understanding (a standard of cooperation between campus authorities and police) and defining sexual consent. State laws in conjunction with “Title IX investigations” declared ongoing in the two DoE guidances also pressure private schools to fall in line with the White House or risk censure and loss of funding: The 2014 guidance publicly revealed 55 schools under investigation for violation of Title IX, many of them colleges and universities with internal investigations of on-campus assault or harassment claims already underway. In these cases, news of the OCR’s Title IX investigations meant to expedite existing proceedings.

The evidentiary delicacy of “he-said-she-said” disputes and the fraught emotions involved in these cases—not to mention the high stakes for the accused, who can be censured, suspended or expelled in without a semblance of due process in some notorious cases—make them challenging enough without further layers of federal interference. Lawmakers and academics familiar with the complexities of campus adjudication tend to agree Title IX and DoE’s enforcement guidelines for it should not, on their own, determine how cases of sexual assault are tried and defined. The position of Health Education Labor and Pension (HELP) Committee Chairman Senator Lamar Alexander, a prominent advocate for campus safety in the Senate, favors the fairest possible process and a system to “help campuses better coordinate with law enforcement agencies, but not turn colleges into law enforcement agencies.” The consistent position of the HELP Committee is to condemn the federal guidances’ pretensions to the level of law and to favor a cleaner, fairer process that will discourage the distracting public outcry and encourage victims, who deserve privacy, to come forward.

Instead, a national campaign fueled a hysterical discourse on campuses. Schools “under investigation for Title IX violation” are, naturally, eager to comply with the guidance. But an attitude of crisis may bias schools to adjudicate without adequately protecting the due process of an accused student. The court of public opinion may side disproportionately with alleged victims—and it’s a pattern used to justify insulated hearings of cases against high-profile student athletes, some of which are horrendously unfair.

Cathy Young wrote for THE WEEKLY STANDARD about a legal panel that frankly took up impediments to fairness in campus assault adjudication. One speaker who expressed concern about the inflamed response to the “campus rape crisis” was clinical psychologist Mary Koss—author of the influential, controversial 1980s study alleging “one in four” coeds had some experience of sexual assault. (Even the federally accepted, but still disputed, statistic says it’s one in five.)

If mishandled cases result from campus proceedings’ fumbling under federal pressures to enforce the DoE guidance on Title IX or else face public shaming and lost funding—why does the administration hold it up as the highest standard legal tool to combat rape culture? For one thing, overstepping the letter of the law, a law against discrimination in schools, serves the public face of the presidency (or, more specifically, the vice presidency). Witness the star-studded “It’s On Us” campaign: Mad Men‘s Jon Hamm, Connie Britton (the cool mom from Friday Night Lights), and the White House want you to know when it comes to dismantling campus rape culture, we’re all a “part of the solution”— the campaign excites public judgment with celebrity spin to distract from the workings of constitutional justice.

The preferred practice may favor the cult of victimhood, but only the courts get to determine what level of fairness college students accused of sexual assault legally deserve in disciplinary proceedings. At private institutions, student accused sexual misconduct get no guarantee of Constitutional due process—so the case for fair on-campus disciplinary proceedings falls to a court of law.

The latest case for the unfairness of these proceedings comes against Brandeis University. It’s a sadly familiar story: The plaintiff’s ex-boyfriend alleged sexual misconduct after their long-term relationship had come to a close, and the university found him guilty by its independent means—now his permanent record bears a damning blight. Brandeis hired a special examiner to build a case against the accused, who received nothing but notice of the charges and claims to have had no idea what he’d done wrong. Brandeis decided the ex-boyfriend’s guilt via Title IX.

Now the courts will decide whether universities, empowered by Title IX, are guilty.