Tuesday, February 28, 2017

Time to End Obama-Era Fed Micromanagement of Colleges Under Title IX

Vice President Pence says he and President Trump “believe that education is a state and local function that should be controlled by” states, not the federal government. A great way to restore local control would be rescind the Obama administration’s federal micromanagement of college discipline. Under Obama, the Education Department sometimes pressured colleges to do things that could lead to lawsuits being filed against them by their students.

For example, the Education Department’s April 4, 2011 “Dear Colleague” letter urged colleges to restrict cross-examination in sexual harassment and assault cases. As its Office for Civil Rights (OCR) put it in that letter, “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” When schools take that advice, it can violate a student’s rights under a state’s Administrative Procedure Act (APA).  Under many state APAs, students have a right to cross-examine their accuser, as courts have made clear in cases such as Arishi v. Washington State University, 385 P.3d 251 (Wash. App. 2016) and Liu v. Portland State University, 383 P.3d 294 (Or. App. 2016).

(It is conceivable that the advice in the “Dear Colleague” letter could also lead to violations of federal law at colleges that follow it. In a few campus disciplinary cases, such as Donohue v. Baker, 976 F.Supp. 136 (N.D.N.Y. 1997), and Doe v. Univ. of Cincinnati, 2016 WL 6996194 (S.D. Oh. 2016), judges have ruled that some cross-examination was constitutionally required on due-process grounds to test the credibility of the accuser. But the Supreme Court has not ruled on whether cross-examination is ever required by the federal constitution in the college setting, even though it lauded cross-examination as the “greatest legal engine ever invented for the discovery of truth” in its decision in Lilly v. Virginia, 527 U.S. 116, 124 (1999).)

The Education Department’s “Dear Colleague” Letter purported to apply the federal sex discrimination law Title IX. But it misconstrued Title IX, as I explain in detail at this link. Moreover, in advising colleges to restrict the rights of their students, it ignored language in a 1999 Supreme Court ruling that emphasized that schools don’t need to risk violating the rights of their students to comply with Title IX. In setting forth a standard for when schools need to take action against sexual harassment or assault by students, the Supreme Court said that “the standard set out here is sufficiently flexible to account both for the level of disciplinary authority available to the school and for the potential liability arising from certain forms of disciplinary action. … [I]t would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims.”  (See Davis v. Monroe County Board of Education, 526 U.S. 629, 649 (1999)).

The Supreme Court plainly meant to allow colleges to avoid acting in ways giving rise to statutory claims against them under both federal and state law, since it was in response to a dissenting opinion that cited both federal and state laws limiting the ability of schools to discipline students (such as state constitutional provisions. See Davis, at pg. 649, citing the dissenting opinion in Davis, at pp. 666-668).

In addition to ignoring the Supreme Court, this Obama-era “Dear Colleague” letter also wrongly imposed new obligations on schools without notice and comment, in violation of the Administrative Procedure Act (as I explained earlier). For example, it “ignored past Office for Civil Rights rulings authored by its own career lawyers and civil servants in forcing colleges to investigate off-campus conduct. Such ‘unexplained departures from precedent’ are arbitrary and capricious, as the D.C. Circuit Court of Appeals noted in Ramaprakash v. FAA (2003). The Obama administration also ignored two federal appeals court rulings, and language in a Supreme Court decision, by demanding that colleges do so.”

In its April 4, 2011 letter, the Office for Civil Rights told colleges they “have an obligation” to investigate even when an incident “occurred off school grounds.” This contradicted what OCR’s career staff told colleges in Title IX rulings during the Bush administration, when I worked there. For example, OCR’s Dallas office noted that “a University does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity of the recipient.” See Oklahoma State University ruling, OCR Complaint No. 06-03-2054, at pg. 2 (June 10, 2004).

The Obama OCR’s contrary position, which it later used to find colleges such as Harvard Law School in violation of Title IX, is clearly at odds with court interpretations of Title IX as not applying off campus, as I have noted in the past. For example, a federal appeals court rejected a lawsuit by a student over an off-campus sexual assault in Roe v. St. Louis University, 746 F.3d 874, 884 (8th Cir. 2014). Quoting the Supreme Court’s Davis decision, it noted that “The Supreme Court has made it clear, however, that to be liable [under] Title IX, a University must have had control over the situation in which the harassment or rape occurs,” which is not the case for an “off campus party” (quoting Davis v. Monroe County Board of Education, 526 U.S. 629, 645 (1999)).

Since free-speech protections are stronger outside of school than within K-12 schools (see, e.g., Klein v. Smith (1986)), the Obama-era OCR’s pressure on schools to investigate what it labeled as verbal sexual “harassment” (such as vulgar speech) outside of school could give rise to constitutional lawsuits against a school. That pressure was thus at odds with the intent of the Supreme Court’s Davis decision to avoid subjecting schools to the risk of “constitutional or statutory claims.”

The “Dear Colleague” letter issued by the Obama-era Office for Civil Rights in 2011 also wrongly ignored past agency rulings in demanding that colleges not allow accused students to appeal findings of guilt unless they also allowed complainants to appeal not-guilty findings — a position that some critics viewed as akin to double jeopardy.

Before the Obama administration, OCR had stated that “there is no requirement under Title IX that a recipient provide a victim’s right of appeal.”  (University of Cincinnati, OCR Complaint No. 15-05-2041 (Apr. 13, 2006)).

Under the Clinton administration, OCR had approved a school’s limiting appeal rights to the accused because “he/she is the one who stands to be tried twice for the same allegation.” (Skidmore College, OCR Complaint No. 02-95-2136 (Feb. 12, 1996)).

Similarly, under the Bush administration, OCR had concluded that “appeal rights are not necessarily required by Title IX, whereas an accused student’s appeal rights are a standard component of University disciplinary processes in order to assure that the student is afforded due process before being removed from or otherwise disciplined by the University.” (Suffolk University Law School, OCR Complaint No. 01-05-2074 (Sept. 30, 2008)).\


Jon Haidt Hopes Libertarians Can Save Us From Coddled Campus Culture

The social psychologist openly admits he wants to create a schism in academia

At the International Students for Liberty Conference (ISFLC) in Washington, D.C., this morning, New York University social psychologist and The Righteous Mind author Jonathan Haidt suggested that libertarians have a critical role to play in combatting the victimhood culture that's been exploding on America's college campuses in the last few years.

In 2015, Haidt and Greg Lukianoff of the Foundation for Individual Rights in Education teamed up to write a blockbuster Atlantic cover story called "The Coddling of the American Mind." In it, they drew attention to just how spectacularly colleges are failing to prepare students to think critically and deal with adversity.

Since then, things have only gotten more insane. Over the course of an hourlong breakout session, Haidt detailed everything that's going wrong with campus culture and how worried he is about what it means for the future. "For the first time in my life, I think this could continue to escalate to the point that democratic institutions start to break down," he concluded.

Haidt plugged Heterodox Academy, the platform he started to bring together scholars to resist these developments, which features resources students can use to encourage the administrators at their schools "to do three things: adopt the Chicago principles on free expression, implement a non-obstruction policy—meaning you can't shut people down. You can protest, you can wave signs, but you can't stop a person from speaking. And finally, please, university, give us some viewpoint diversity."

The goal of the project is, he openly admits, to create a schism in academia.

"We have a gigantic market failure where almost all of the elite schools are going down this road," he said, "but most parents don't want their kids to go to such a school. Now, the parents are never going to sacrifice prestige, so no matter how far left they go, parents are always going to want their kids to get into the top schools. But if credible alternatives arise," that can shake up the scary status quo.

"So at Heterodox Academy what we're trying to do is really praise the schools that say, 'We're going to produce a neutral platform and you guys can argue it out,'" he said. "Chicago and [the University of] Virginia are two of my top hopes, because they have long traditions on free speech. We're trying to create a schism so that Brown and other schools like it just become ever more like viper pits, where even the students are saying, 'This is insane.' And the students at Chicago are saying, 'Oh, it's really cool. We can argue about anything.' My hope is that students and parents will flock to the ones that aren't viper pits."

Haidt then said he thinks classical liberals like those at the conference are particularly suited, and situated, to be effective advocates on these positions. Looking at research on how different groups are viewed on campus, he noted that "conservatives are poison. They're seen as just racists [like] Milo and Trump. But as far as I can tell, libertarians aren't really hated. The left looks at you kind of warily. You confuse them, but that's good. That's an opening."

"At Heterodox Academy we've noticed that there are not a lot of conservatives out there in the academy," he added. "What there are are libertarians and centrists. That's the main kind of diversity we have to work with. And this is not about having conservatives in the academy. What we need is to not have orthodoxy. So the more you guys can raise your voices and question things, the better."


11-Year-Old Docked Points for Not Bashing Trump

To say that some people dislike Donald Trump may well be the understatement of the year. It's hard to imagine any duly elected president seeing so many protests in his first two months in office, yet here we are.

It's so bad that now an 11-year-old in Annadale, New York, was docked 15 points on a homework assignment because she failed to answer a question demanding students bash Trump:

Vincent Ungro, a dad from Annadale, New York, has an 11-year-old daughter who attends I.S. (Intermediate School) 75. She asked him for help with her vocabulary homework last Friday night because she was trying to fill in the blanks from a word bank to complete her assignment -- and was really puzzled.

“President Trump speaks in a very superior and _________ manner insulting many people. He needs to be more __________ so that the American people respect and admire him,” read one homework sentence. The next question was: “Barack Obama set a _________ when he became the first African-American president.”

And what were the choices for the two questions, you ask? These three words: “haughty,” “humble,” and “precedent.” You can guess which ones were meant to be the “correct” answers in this teacher’s mind.

Ungro, 46, told his daughter not to fill in those blanks -- and wrote a note to the teacher, Adria Zawatsky, on the homework sheet, as The Post noted. “Please keep your political views to yourself and do not try to influence my children on them. Thank you,” he wrote.

The teacher docked the points -- which Ungro called "vindictive."

The teacher emailed Ungro and defended her question, stating that she was addressing his personality rather than his ability to serve in the office of president. She went on to add that the media makes similar references to Trump, and that she believes she has the same right.

Talking to Your Liberal Adult Children About Trump
Unfortunately, people can either stop reading or change the channel when the media pontificates in an unwelcome way.  An 11-year-old can't.

Students are stuck in that classroom and they're required to do what the teacher says in these cases -- and it can affect their future if they do not comply. This is a prime example of forced political indoctrination in public education.

Not all the news is bad, however. It seems the principal agreed with Ungro to some extent. While she wasn't fired, she was reprimanded and a disciplinary letter was placed in her file. That may not be much, but it's better than nothing, and if she keeps it up she may lose her $102,000 teaching job.


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