Reversal of the Obama administration’s bodacious power grab that sought to make gender self-identification a federally protected civil right in all public school accommodations and activities should be just a small start of the restoration of reason needed at the Office for Civil Rights (OCR) in the U.S. Department of Education.
For 40 years, infamous “Dear Colleague” letters (DCLs) and various “guidances” to college and school administrators from the OCR, composed of 650 lawyers/investigators, have transformed a straightforward congressional ban on sex discrimination — Title IX of the 1972 Education Amendments — into a hideous beast that tramples the due-process and free-speech rights of students and professors.
The Trump administration is trusting communities and states to make arrangements for student bathroom, locker-room, showering, and field-trip access that are fair both to the less than 1 percent of students who consider themselves transgender and the more than 99 percent who don’t. Chances are that a commonsense solution in a few localities will gain support and spread around the country. That is the beauty of federalism, and it is the American way.
The Obama conveyance (via a May 13, 2016 DCL) of absolute Title IX protection to gender fluidity raised legitimate privacy concerns, particularly among schoolgirls and their parents. However, past Title IX rewrites by the OCR may have an even more profound impact on constitutional rights to due process, free speech, and equal protection under the laws. Those egregious Title IX excesses also merit remedial action from Congress and the president.
The 37-word heart of Title IX is short and seemingly unambiguous: “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.”
Yet, as Robert L. Shipley notes in his 2016 Encounter Broadsides pamphlet Twisting Title IX, mischievous federal bureaucrats have distorted the law grotesquely to advance political agendas, and in the process, they have created new victims, some of them women. (Shipley is executive director of the Foundation for Individual Rights in Education, a pro-liberty nonprofit that fights political correctness in academia.)
In its early years, Title IX primarily dealt with equity for women in athletics. However, that focus began to expand in the 1990s, as activists successfully appealed to OCR to use Title IX as a cudgel against sexual harassment resulting from creation of a “hostile environment” for those claiming to be offended.
Thus, in one of several cases Shipley cites, Northwestern University film professor Laura Kipnis, a well-known feminist, found herself facing charges from the campus Title IX office for having written an article for the Chronicle of Higher Education (February 2015) titled “Sexual Paranoia Strikes Academe.” Kipnis panned Northwestern’s heavy-handed attempt to regulate sexual behavior and expression, even “inappropriate jokes.” One of the charges against her was that her article had a “chilling effect” on reporting of Title IX harassment.
Just when the university’s thought police had Kipnis (who was denied access to a lawyer or a written statement of evidence against her) all set up for kangaroo-court sanctioning, she brilliantly authored a second Chronicle article, “My Title IX Inquisition,” that embarrassed the bejabbers out of Northwestern administrators — so much so, in fact, they immediately dropped charges against her.
Unfortunately, many faculty members have been unable thus to escape the wrath of the speech police.
On January 19, 2001, just one day before Bill Clinton’s departure from the presidency, OCR seized upon a court precedent to issue extensive new guidance on how schools should respond to student-to-student “hostile environment harassment.” Sarah Emerson (not her real name), a student at the University of Oregon, discovered that was no joking matter when she teased a pair of lovebirds by yelling “I hit it first!” from her dormitory window.
Despite quickly apologizing to the couple for the off-color quip, Emerson found herself charged with five Title IX offenses and facing possible expulsion. Only when the Foundation for Individual Rights in Education went national with a press release announcing this draconian action against a trivial offense did Oregon drop all the charges.
On April 4, 2011, the Obama administration issued another DCL that hasn’t received the notoriety of the 2016 DCL on transgender bathroom access, but it nevertheless deserves condemnation for trampling on the due-process rights that reside at the core of our system of justice. First, this DCL — which was issued as a mere “clarification,” to avoid being advertised for public comment — requires that in all sexual-misconduct proceedings colleges must allow both sides (the accuser and the accused) to appeal a verdict. That clearly wipes out the basic protection of double jeopardy — i.e., not being subject to retrial after being declared not guilty.
Second, the Obama crew decreed colleges must use a “preponderance of evidence” (defined as a 50.01 percent certainty) as the standard for conviction in a sexual misconduct case. That is basically a coin flip. By contrast, the “beyond a reasonable doubt” measure in the criminal justice system requires 98-99 percent certainty.
By being able to cut off federal funding, Title IX enforcers have life-or-death power to force legal processes on universities that may be driven more by political agendas than principles of fairness. Sexual assault on campus is a legitimate concern, but if the charge is rape, a felony, the criminal justice system is a surer venue for justice than a college operating under rules rolled out by partisan bureaucrats in Washington, D.C.
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