As part of its broader attack on safeguards against false accusations, the federal Education Department is urging colleges to strip students and faculty of the right to cross-examine their accusers in disciplinary proceedings over alleged sexual harassment. In an April 4 letter from Assistant Secretary for Civil Rights Russlynn Ali, the Education Department said that it “strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.”
This is perverse, since the subjective nature of the legal definition of harassment means that there is no category of cases in which cross-examination is more useful or essential to ensure due process. To legally qualify as sexual harassment under Title IX, or racial harassment under Title VI, speech must be severe and pervasive enough to create a hostile learning environment for the listener, and interfere with the listener’s education, both in subjective and objective terms, according to court rulings like the Supreme Court’s 1999 Davis decision. Transitory offense is not enough. If the accuser admits on questioning that she did not really view the offensive speech as being a “big deal,” or was not shocked or surprised by it, that probably rules out the existence of a subjectively hostile environment. Indeed, a federal appeals court dismissed a racial harassment claim for just that reason in Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001).
But a wrongly-accused person can’t establish that lack of a subjectively-hostile atmosphere without questioning the accuser, and may not be able to show that the accuser wasn’t greatly impacted by the speech without cross-examining the accuser about its alleged effect on her and her studies, such as whether she continued to enjoy her college experience after overhearing the allegedly “harassing” remarks.
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Earlier, CEI issued a study on an Education Department rule that is likely to backfire on students: the so-called “gainful employment rule” that is being used to crack down on for-profit colleges. Now we learn that a General Accounting Office (GAO) report that was used to justify the rule was not “accurate,” as an internal GAO memo concedes. For example, the GAO repeatedly included erroneous claims that “15 out of 15 schools” investigated by the GAO engaged in various deceptive practices, when in fact far fewer of the 15 schools had been found to have done so. “According to the GAO memo, ‘because a summary of X of 15 schools was requested, we then went back and stretched whatever we could find to come up with a number for the testimony.’”
Other inaccuracies in the GAO report resulted because “congressional staffers” hostile to for-profit schools “demanded the inclusion of numerous details as it was being finalized.” “The [GAO] team’s unwillingness to say no to the additional insertion of details at the end of a job created some of our most obvious inaccuracies.”
As the Daily Caller notes, “The report was crucial because it helped the push for strict new regulations at the Department of Education on the for-profit colleges. The most controversial part of the regulations, called gainful employment, is pending at the White House Office of Management and Budget.”
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In the Washington Examiner, I explain how the Education Department is both undermining protections for falsely-accused students and teachers, and reducing the accuracy of campus decisions in sexual harassment cases. This is occurring as a result of demands contained in an April 4 “Dear Colleague” letter sent by a political appointee (Assistant Secretary for Civil Rights Russlynn Ali) to the nation’s school officials, who are now complying with those demands even though they lack a sound legal basis. In the Washington Post, attorney Wendy Kaminer wrote that “the Education Department’s new policies increase the risk that students wrongly accused of misconduct will be found guilty, suspended or expelled, and tarred as stalkers or rapists.”
The Foundation for Individual Rights in Education took issue with the Education Department’s demands in this letter. The Daily Caller covers the controversy here.
George Mason University Law Professor David Bernstein comments here, observing that “the Department of Education has no business dictating” a lower evidentiary “standard to universities nationwide.” FIRE’s Samantha Harris and Erica Goldberg also comment on the controversy.
The Education Department tried to restrict the use of financial aid by for-profit colleges by barring them from getting more than 90 percent of their funding from federal financial-aid programs.
How did they respond? By raising tuition, so that at least 10 percent of their students’ education would not be paid for by federal loans and grants. Thus, financial aid actually encouraged them to increase tuition, radically increasing their students’ future indebtedness.
The net result was to “create a perverse, no-win ‘Catch-22’ that could prevent low-income students from attending college,” by encouraging such colleges to raise tuition to outstrip rising financial aid by more than ten percent.
Over the past three years, the federal government has increased student aid by more than 40 percent. As a result, students are entitled to as much as $15,000 in grants and loans during their first year of study. The result has been to drive up tuition at some colleges by even higher percentages.
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A Minnesota school district is “laying off 94 teachers” even while spending thousands of dollars to send “a delegation” of teachers to an annual “White Privilege Conference” with Marxist speakers, notes the National Review:
“This will cost the district $160 a day for each teacher plus $125 a day for the substitutes who will handle their classes while they are away, learning ‘how white privilege, white supremacy, and oppression affects daily life.’ Other cash-strapped districts will also be sending delegations. The keynote speaker will be Roxanne Dunbar-Ortiz,” who was “part of the Venceremos Brigade in Cuba. . .Last year’s speaker recommended looking to Hugo Chavez’s Venezuela for ‘exciting progressive developments.’ The sponsors of this educational event include the University of Minnesota,” and the private institutions “Hamline University, Gustavus Adolphus College,” and “Augsburg College, among others.”
The Seattle schools, a past participant in the White Privilege Conference, recently insisted that Easter eggs be referred to as “spring spheres” so as not to offend non-Christians. In 2007, the Seattle Schools illegally used federal funds to send students to the White Privilege Conference. (One of the Conference speakers says that Christianity has far too much influence in our society.)
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On April 4, the Education Department’s Office for Civil Rights (OCR) sent the nation’s school officials a letter urging them to water down due process and other protections for students and staff accused of sexual harassment. It encouraged colleges and schools to cut back on procedures that help debunk unfounded allegations, such as cross-examination, and sought to place limits on students’ ability to appeal their convictions. The Education Department’s letter, timed to coincide with a PR campaign by Joe Biden, was also criticized by civil libertarians, like former ACLU board member Wendy Kaminer and the Foundation for Individual Rights in Education, for defining sexual harassment so broadly as to include constitutionally protected speech.
As Wendy Kaminer noted, the Education Department is attempting to deprive accused students of the right to cross-examine their accusers: “students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant ‘may be traumatic or intimidating.’” As OCR puts it, “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” This is perverse, since “a famous legal authority once described cross-examination as the most powerful engine for the discovery of truth ever devised by man.”
(While there is no independent constitutional right to cross-examine in campus disciplinary proceedings, the right is sometimes protected by state education codes, collective bargaining agreements, or other contracts or regulations. Moreover, in a few campus disciplinary cases, such as Donohue v. Baker (1997), judges have ruled that cross-examination was constitutionally required on due-process grounds to test the credibility of the accuser.)
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The Education Department is trying to change the burden of proof that many colleges and universities use in disciplinary proceedings over sexual harassment, despite court rulings undermining its position. Effectively, it is legislating through administrative fiat, in a way that is arbitrary and capricious.
Many school disciplinary systems give accused people a firm presumption of innocence, requiring clear-and-convincing evidence of guilt for formal discipline. There is generally no exception for people accused of sexual harassment, who are thus entitled to the same due-process protections as everyone else.
In an April 4 “Dear Colleague” letter reminding schools that sexual violence can constitute sexual harassment in violation of federal law, the Education Department’s Office for Civil Rights (OCR) called this well-established presumption of innocence into question. It claimed that schools cannot use a clear-and-convincing standard of proof typical in school disciplinary procedures for sexual harassment cases: “A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.” See Dear Colleague Letter: Sexual Violence Background, Summary and Fast Facts. “Preponderance of the evidence” means that if a school thinks there is as little as a 51 per chance that the accused is guilty, the accused must still be disciplined.
The Education Department’s position is based on a misunderstanding of who is subject to Title IX, the federal law banning schools from committing sex discrimination. Title IX’s requirements apply to schools, not individual students.
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To promote due process, some college disciplinary systems recognize a strong presumption of innocence, requiring clear-and-convincing evidence of guilt for discipline. That practice is now called into question by a recent Education Department letter that ignores a Supreme Court decision and federal appeals court rulings to the contrary.
In an April 4 “Dear Colleague” letter, the Education Department’s Office for Civil Rights (OCR) claims that schools cannot use a clear-and-convincing standard of proof typical in school disciplinary procedures for sexual harassment cases: “A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.” See Dear Colleague Letter: Sexual Violence Background, Summary and Fast Facts. “Preponderance of the evidence” means that if a school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined.
To satisfy this OCR requirement, schools that have long used a clear-and-convincing standard in disciplinary cases would have to suddenly create a special exception for sexual harassment and discrimination cases, giving people accused of such offenses less due process than they would otherwise receive. This would be a major departure from existing practice for schools, like Harvard Law School. Harvard’s “Policy and Guidelines Related to Sexual Harassment,” adopted by faculty vote in April 1995, contains the following provision: “Burden of proof: Formal disciplinary sanctions shall be imposed only upon clear and convincing evidence.” The Education Department’s rule also conflicts with faculty collective bargaining agreements mandating a clear-and-convincing standard.
The Education Department’s claim that complainants have a right to demand discipline whenever the evidence ever-so-slightly favors them is at odds with the Supreme Court’s Davis decision, which spelled out when sexual harassment in the schools violates the federal civil rights statutes that OCR is charged with enforcing. (See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).)
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The topic of bullying is in vogue, and President Obama is taking advantage of that: “President Barack Obama has acknowledged he was taunted as a child over his big ears and unusual name, as he opened a White House summit on preventing bullying” a few days ago. Meanwhile, administration officials are trying to stretch the federal law against sex discrimination, Title IX, to outlaw bullying aimed at gay and lesbian youth, although the Administration has no statutory basis for doing so.
In essence, as I explain over at Minding the Campus, they have invented a federal law against the bullying of gay youth, although Congress has yet to pass a ban on either homophobia or bullying. To do this, they have so stretched the definition of sexual harassment as to create a serious conflict with the First Amendment and federal court rulings, as I explain in greater detail at this link.
Federal law doesn’t ban bullying as such — that is a matter addressed by state law. All states ban assault and battery, and some states have laws specifically aimed at bullying in the schools.
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The Obama administration’s recent push against “bullying” resulted in a letter to school officials that undermines both free speech and due process. On October 26, a political appointee in the Education Department sent a “Dear Colleague” letter to the nation’s school boards claiming that many forms of homophobia and bullying violate federal laws against sexual harassment and discrimination. But those laws only ban discrimination based on sex or race — not bullying in general. The letter from the Assistant Secretary of Civil Rights Russlynn Ali defined “harassment” so broadly as to reach both speech protected by the First Amendment, and conduct the Supreme Court says does not legally qualify as harassment.
The letter left the incorrect impression with some reporters that federal statutes already ban bullying and sexual-orientation-based harassment. For example, Keen News Service reported that the Education Department “issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying,” including “sexual harassment of LGBT students.” The letter was part of the Obamas’ PR campaign against bullying, that featured a “a high-visibility conference on bullying prevention March 10, with the President and first lady” and the introduction by Obama backers of “several LGBT-inclusive bills designed to address bullying of students.”
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