Dept. of Education Gets it Wrong on Rape Cases

It’s hard to sustain the common right-of-center critique that the Obama administration is bent on a weird Marxist/postcolonial/radical socialist agenda. I disagree with a great bulk of the administration’s policies but honest people should admit that they simply reflect longstanding center-left opinions of the Democratic Party.  Obama is a technocrat who means well and isn’t very effective. To me, that’s bad enough. All that said, at least one action of his administration—a little noticed noticed but vitally important Department of Education Office for Civil Rights “guidance letter” (essentially a new regulation) -- gives genuine credence to the dark fantasies of the Right. Ultimately, the new regulation will weaken the rights of students who are accused of committing rape on college campuses.

The letter, 19 pages of bureaucratic prose, starts with some nice-enough platitudes about civil rights, the need for gender equality on campus and the need to prevent sexual violence on campus. Fair enough.

Then, on page 10, it gets into the real meat of its new regulations:

In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard fo evaluate complaints.

That’s pretty legalistic but, basically, it means that schools will risk losing nearly all of their federal funding, which all but two accredited colleges in the country rely upon, if they offer any rights to men accused of rape on college campuses. This, in turn, means that the already Kafkaesque world of campus judicial and speech regulation systems—visit the Foundation for Individual Rights for Education for a depressing boatload of examples—could end up turning even worse. An accusation of rape is obviously a very serious one that can ruin an accused person’s life and end up in that person being expelled from school and branded for life as a rapist.

Under the new DOE regulations people accused of rape on college campuses will have no rights to confront their accuser, get advice of from counsel and, in many cases, will face huge disincentives to even testify in their own defense.

Furthermore, accused individuals can be found guilty on the basis of a simple greater-than-fifty-percent probability that the accusation is true. Given that some campus codes include “verbal coercion” (“I’ll break up with you if you don’t sleep with me”), “unwanted kissing,” and even fully consensual encounters where both parties have had too much to drink as “rape,” the entire system is simply an invitation to arbitrary justice. The definitions are soo broad that almost every college student (heck, everyone in the world) has committed rape under these definitions.

Frankly, comparisons to the former Soviet Union’s system of “proletarian justice”--where court’s served to educate ideologically and push the Revolution—are well pretty apt. “You are giving the university justice systems over entirely to the most ideologically zealous,” says Alan Charles Kors, a University of Pennsylvania professor who chairs the board of FIRE. “Under these laws you can try rape under the preponderance of the evidence standard in a university court even if the police don’t prosecute the same case. The most zealous people will control everything.”

Greg Lukianoff, the President of FIRE which has begun to fight an heroic battle against the proposal, points to real effects it has already had. One student at Stanford accused of misconduct saw the entire process changed right in the middle of the procedure based on the DOE letter. And more horror stories are almost sure to follow.

OCR has made it clear that it’s not going to withdraw its regulations but, most likely, Congress is going to have to act. Todd Gaziano, Director of the Heritage Foundation’s Center on Legal and Judicial Studies has what I think is the best suggestion: forbid anything that implements the standards as written and require OCR to revise them. It’s the only just way to proceed.