If you are a dissenting professor or a male student in modern American higher education, there is a chance that you’ll be subjected to legal proceedings so bizarre, so opaque, and so unfair that you won’t believe they could happen in the United States of America. On the basis of the most flimsy of complaints, supported by minimal to nonexistent evidence, you can find yourself deprived of a lawyer and facing tribunals of hostile, barely trained ideologues applying only the flimsiest rules of evidence. As Northwestern professor Laura Kipnis discovered, it can even be an ordeal to discover the nature of the charges against you. And for every Kipnis case that gets heavily covered by the national media, there are dozens more that go wholly unreported, hidden behind university confidentiality requirements.
When students and professors question this travesty of justice, the response is uniform: The university’s hands are tied. These actions are required by federal law, by Title IX. But this is a monstrous, destructive lie. In reality, the modern campus Star Chamber is the product of collusion between a lawless Obama administration and ideologically complicit universities — with both institutions defying established legal norms to violate due process and chill constitutionally protected speech.
Title IX is, in fact, one of the shortest significant statutes in the United States Code. Its key operative provision is as follows: “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.” This is the statute passed according the constitutional process — through the House and Senate, signed by the president.
The statute has been dramatically amplified by voluminous regulations, passed through the typical notice-and-comment process, which is less democratic (obviously) than statutory enactment but still formally allows for public input. Multiple Title IX regulations have been challenged in court, with the cases often resulting in significant changes to the regulations as well as the statute itself.
Yet in April 2011, the Obama administration abandoned both the statutory and the regulatory rule-making processes to unilaterally issue a “Dear Colleague” letter from the Department of Education’s Office of Civil Rights (OCR). The letter relied on debunked statistics on the prevalence of sexual assault on campus and then not only mandated an extraordinarily low burden of proof in sexual-assault cases (“preponderance of the evidence” rather than the “beyond a reasonable doubt” standard applied in criminal cases) but failed to even acknowledge the tension between expansive sexual-harassment prohibitions and the broad constitutional protections afforded even “offensive” speech.
These procedural and substantive problems were immediately recognized by critics on the left and the right. For example, 16 University of Pennsylvania law professors criticized new university policies enacted in response to the OCR letter by reminding the university that the OCR had overstepped its bounds:
In addressing the issue of sexual assault, the federal government has sidestepped the usual procedures for making law. Congress has passed no statute requiring universities to reform their campus disciplinary procedures. OCR has not gone through the notice-and-comment rulemaking required to promulgate a new regulation. Instead, OCR has issued several guidance letters whose legal status is questionable.
Yet despite the lawless federal action, it’s gone largely unchallenged in the courts. Why? Why have billion-dollar educational institutions shied away from legal confrontation with the Department of Education, even when the department clearly violated mandatory rule-making requirements? One reason, of course, is fear. The DOE can threaten federal funding, and universities are dependent on the flow of federal dollars. The primary reason, however, is ideology. Universities are in the grip of a feminist-driven hysteria, with university campuses inaccurately portrayed as among America’s most dangerous places for young women. The price of defying the OCR — which enabled the campus crackdown — was the ire of the radical campus Left.
Universities are addicted to censorship, and the Department of Education is their partner and enabler.
So universities meekly acquiesced, crafting new policies that have done nothing to calm the hysteria but have instead given ideologues powerful new tools to crush dissent and ruin innocent students’ lives. For example, at Northwestern alone, Professor Kipnis faced a Title IX complaint over her Chronicle of Higher Education essay, a faculty colleague faced a second complaint for objecting to Ms. Kipnis’s treatment at a faculty meeting, and the president of the university faced his own complaint for writing an op-ed in the Wall Street Journal supporting academic freedom. How many professors or administrators are willing to speak freely with Title IX investigations the price of offending the wrong students?
In other contexts, however, universities do know how to fight the federal government — when they care to. Let’s not forget that a coalition of universities fought all the way to the Supreme Court for the right to bar military recruiters from campus — even with federal funding hanging in the balance. In addition, Title IX’s impact on college athletics led to years of contested cases, where colleges strove mightily to limit the act’s impact on their sports programs.
The conclusion is inescapable: All too many universities welcome the federal government’s lawlessness. It gives them exactly the cover they need to enact regulations they could never otherwise justify. Universities are addicted to censorship, and the Department of Education is their partner and enabler. Title IX has become a blank slate, a convenient place for the Obama administration and its campus partners to scrawl their speech codes, their corrupt legal processes, and their contempt for academic freedom.
— David French is an attorney and a staff writer at National Review.