Thursday, June 30, 2022


Expect the Title IX Inquisition

Last week, on the 50th anniversary of the passage of Title IX—the federal law banning sex-based discrimination in education—the Biden administration announced sweeping proposed regulations to address how colleges and universities adjudicate sexual misconduct allegations. The move wasn’t very surprising: During the 2020 campaign, Joe Biden had sharply criticized the existing regulations developed by former Education Secretary Betsy DeVos, which require colleges to conduct live hearings with cross-examination in campus Title IX cases.

Thursday’s announcement did, however, represent a further escalation in a policy and legal debate that has spanned more than a decade. Beginning in 2011, the Obama administration had expressed concern that far too many students, especially female undergraduates, were sexually assaulted while in college—which was undeniably true, though specific numbers remain a point of contention. It then argued that universities too often swept these allegations under the rug—which was sometimes true, especially when cases involved allegations against powerful university employees and high-profile athletes. In response, the administration issued guidance documents threatening to withhold federal funds unless universities changed their adjudication procedures by lowering the standard of proof for sexual misconduct allegations and by allowing accusers to appeal not-guilty findings.

Catherine Lhamon, who headed the Education Department’s Office for Civil Rights (OCR) from 2013 through 2016 (and is back in that role now), praised the Obama administration as the “first administration to call sexual violence a civil rights issue.” This vision of civil rights prioritized the rights of the accusers—who, it was feared, would not engage with the Title IX process at all if their university provided the accused with too many layers of procedural protection. As a 2014 guidance document from Lhamon explained, the administration wanted schools to “ensure that steps to accord any due process rights [to accused students] do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.”

Universities around the country followed the new orders from Washington, expanding their Title IX bureaucracies and constraining the rights of accused students. Activists supplied additional pressure: Several newly formed groups championed the interests of campus accusers, and some, such as Know Your IX, had considerable influence on the overall debate. The number of allegations surged; so, too, did guilty findings. Moral panics have swept up the innocent as well as the guilty throughout American history, and this one was no different. Hundreds of students, many of whom presented strong claims of innocence, have since sued—and received a surprisingly sympathetic response in the courts.

A 2020 decision from the Sixth Circuit Court of Appeals best captured the general judicial concern with how the Obama administration’s Title IX policy had played out in practice. “Any number of federal constitutional and statutory provisions,” Judge Raymond Kethledge wrote, “reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group. That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce.”

A well-intentioned policy initiative designed to ensure that survivors of sexual assault would not lose their access to education had wound up producing an entirely separate class of victims—students who were punished after dubious or false findings of guilt—amid procedures that one federal judge recently noted had been compared unfavorably to those of the “infamous English Star Chamber.”

This was the situation that DeVos inherited when she took over as education secretary. While she remains among the most polarizing of Donald Trump’s cabinet members, her handling of Title IX was an exception to the Trump administration’s more general pattern of sloppy, evidence-free rule-making. DeVos took nearly three years to develop new guidelines, which closely hued to existing court opinions. The resulting regulations, which have been in place since August 2020, survived five court challenges—from blue states, from professional and campus activist organizations, and even, disappointingly, from the ACLU.

After surveying the previous decade’s record, DeVos issued regulations that reimposed basic procedural fairness on colleges, which under the Obama administration’s policies had not been required to presume the innocence of accused students. Both the accused and accusing students received access to “any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the [college] does not intend to rely.” This was followed by an adjudication through live hearings with unbiased panelists, and in which each student would have the right, through a lawyer or advocate, to cross-examine adverse witnesses.

These procedural protections, it’s important to note, apply to both sides, and thus make it harder for colleges to sweep a survivor’s allegations under the rug. But in practice, given how far the Obama-era Title IX process had tilted the playing field in favor of the student filing the complaint, the imposition of fairer procedures has disproportionately benefited accused students. Clarifying the departure from Obama-era principles, the DeVos regulations reminded colleges that their mistreatment of either the accuser or the accused student could “constitute discrimination on the basis of sex under Title IX.”

Some legal academics, such as Harvard law professors Janet Halley and Jeannie Suk Gersen and University of San Francisco law professor Lara Bazelon, praised DeVos’ work in this area. All had previously expressed particular concern about how the procedural unfairness associated with Obama-era Title IX proceedings disproportionately harmed Black and other students of color. For the most part, however, the existing regulations generated strong pushback from liberal activists and unanimous condemnation from congressional Democrats. Few were more impassioned than former (and current) OCR head Lhamon, who charged that the DeVos regulations would take colleges “back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” Last year, after Biden nominated her to return to her OCR post and assume responsibility for developing new guidelines, Lhamon stood by her words.

The provision reminding colleges to respect the rights of accused students was removed ‘in its entirety,’ on grounds of redundancy.

Most of the 700 pages of proposed regulations that Lhamon’s office released last week address matters tangential to procedural concerns. Some deal with the scope and definition of harassment under Title IX—an interesting legal debate, but one with minimal practical consequences, since nearly every college voluntarily retained the broader definitions associated with Obama-era guidance. Still other sections deal with safeguarding LGBTQI+ students—a critical issue, although most colleges already have robust anti-discrimination protections. And still others discuss allegations against K-12 students—something of a Wild West in this area, but also a topic that involves minors and therefore different legal standards.

But the sections on campus sexual assault adjudications target the procedural protections from the DeVos regulations with almost surgical precision. Under the proposed Biden rules, accused students would lose the right to cross-examination entirely, unless their college is in a state where a court ruling requires otherwise. They would even lose the right to a live hearing; colleges can satisfy Title IX, according to the proposed guidelines, merely by providing at least two “meetings” between the accused student and an investigator. And instead of a mandate that colleges share evidence from the investigation, the regulations would permit schools to have the investigator initially provide only a “written investigative report that accurately summarizes” the “relevant” evidence. The regulations cite a variety of rationales—making the process easier for accusers, for example, and reducing the financial burden on colleges—for introducing these changes. The provision reminding colleges to respect the rights of accused students was removed “in its entirety,” on grounds of redundancy.

The proposed regulations thus pave the way for the return of the “single-investigator” model, pointing to comments from some college officials looking to increase the number of complaints filed by campus accusers. The Obama administration had encouraged this structure, in which a single person affiliated with the Title IX office serves the combined roles of investigator, prosecutor, judge, and jury in a criminal case. The existing regulations, however, forbid its use on grounds that a system in which accused students can’t see or hear the testimony of witnesses against them is fundamentally unfair. The absence of checks and balances is especially problematic in campus sexual assault adjudications, where colleges are often under enormous scrutiny and pressure—from student activists, the media, elements of the faculty, the federal government, and even occasionally powerful donors—to reach a particular result.

The regulations dubiously cite a handful of academic studies to maintain that an “inquisitorial” approach “is more likely to produce the truth than adversarial methods like cross-examination.” U.S. District Judge F. Dennis Saylor reached a contrary view after handling a lawsuit from a former Brandeis University student who had been found guilty under the single-investigator system. During a hearing on the case, he considered the procedures then used by the university as “closer to Salem 1792 than Boston 2015.” “If we had a time machine,” Saylor continued, “I would be interested in Justice Brandeis’ view of that procedure.”

Over the last several years, the protection of civil liberties has become an even more prominent platform for the Democratic Party. Progressive prosecutors have crusaded for procedural justice; activists and legislators have opposed the judicial revocation of rights (most recently in Dobbs v. Jackson Women’s Health Organization) at the hands of conservative courts. Yet here are proposed regulations that make wrongful findings more likely by revoking procedural rights that students in all 50 states currently enjoy—and the reaction from Democratic legislators has been universal praise. A representative response came from Sen. Patty Murray, D-Wash., who rejoiced, “On the #TitleIX anniversary, I can’t think of a more fitting tribute than the Biden Admin today announcing they’ll replace the Trump-DeVos rule that led to survivors being silenced & campus sexual assault being brushed under the rug. The new rule will help make campuses safer.”

Murray’s statement did not explain why taking away the right of accused students to see the evidence against them, or to be found guilty only after a hearing in which their lawyer could cross-examine adverse witnesses, would make campuses “safer.” In American politics, the rhetoric of prioritizing “victims’ rights” before a determination could be made about whether an accuser actually was a victim has long been associated with the extreme right, usually around racial issues. A decade ago, the Obama administration surprisingly embraced it as a means of encouraging more Title IX reports on campuses. The resurrection of this core hostility to civil liberties under a still more progressive administration remains one of the great ironies of the Title IX debate.

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University That Employs Clarence Thomas Shuts Down Students' Attempt to Remove Him from Teaching Position

The college at which Justice Clarence Thomas teaches law will not cave into a petition calling for his removal as an adjunct professor.

George Washington University on Tuesday said it will not boot Thomas, who last week concurred in the Supreme Court opinion that overturned the Roe v. Wade ruling, according to The Hill.

“Because we steadfastly support the robust exchange of ideas and deliberation and because debate is an essential part of our university’s academic and educational mission to train future leaders who are prepared to address the world’s most urgent problems, the university will neither terminate Justices Thomas’ employment nor cancel his class in response to his legal opinions,” the college said in a letter sent to students.

“Just as we affirm our commitment to academic freedom, we affirm the right of all members of our community to voice their opinions and contribute to the critical discussion that are foundational to our academic mission,” the letter said.

The letter did note that the opinions Thomas expressed do not represent those of the college.

The petition objected to Thomas’s concurrence and his comment within his concurring opinion that the court should revisit the 2015 ruling that legalized same-sex marriage, a 2003 ruling concerning anti-sodomy laws and a 1965 ruling concerning government regulation of contraception.

“With the recent Supreme Court decision that has stripped the right to bodily autonomy of people with wombs and with his explicit intention to further strip the rights of queer people and remove the ability for people to practice safe sex without fear of pregnancy, it is evident that the employment of Clarence Thomas at George Washington University is completely unacceptable,” said the petition, which has gained more than 7,000 signatures.

“Judge Thomas is actively making life unsafe for thousands of students on our campus (not to mention thousands of campuses across the country). Make your voice heard and help us kick Clarence Thomas out of Foggy Bottom,” the petition said.

Jonathan Turley, a legal scholar at George Washington University, said the college did the right thing.

“For many of us in teaching at various schools, these cancel campaigns have become a constant, looming threat,” he said, according to the Washington Examiner.

“The GW petition reflects a growing intolerance and orthodoxy that is sweeping across universities. It is gratifying to see GW standing firm on free speech and academic freedom. Yet the rising intolerance on America’s campuses will not be halted until faculty and students affirmatively fight for greater diversity of viewpoints and values,” he said.

Although Thomas did not issue any public comments about the student petition, he addressed the cancel culture in a March speech, according to the Desert News. Thomas said then that debate and disagreement, upon which democracy is based, are now considered wrong.

Thomas noted that colleges have evolved into places stocked with “people who actually seem quite full of themselves. Now it’s sort of this animus develops if you disagree.”

“If you can’t do it on a university campus, where do you learn civility? Where do you learn to disagree without being disagreeable?” he said.

“I’m afraid, particularly in this world of cancel culture attack, I don’t know where you’re going to learn to engage as we did when I grew up,” he said then, according to the Washington Examiner.

“If you don’t learn at that level in high school, in grammar school, in your neighborhood or in civic organizations, then how do you have it when you’re making decisions in government, in the legislature or in the courts?

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Australia: A huge Marxist influence pervades education today

The NSW Liberal Senator Hollie Hughes gave a speech to the Sydney Institute identifying why the Scott Morrison government was defeated in the recent election. In doing so, she suggested that many young voters have been influenced by ‘an education system basically run by Marxists’.

There’s no doubt the popularity of the Greens Party and the so-called Teal independents was especially strong among voters under the age of 24 and with higher levels of education. There’s also no doubt since the late 60s and early 70s Australia’s education system has been infiltrated and dominated by the neo-Marxist inspired cultural-Left.

Despite the ALP’s education minister Jason Clare describing Senator Hughes’ comment as ‘just crazy’, the reality is those in control of Australia’s schools and universities have given up any pretence of being impartial, balanced, and objective.

As detailed in the chapters on school and tertiary education published in Cancel Culture and the Left’s Long March, Australia’s education system has long been captured by neo-Marxist inspired Critical Theory and cultural-Left ideology dedicated to overthrowing the status quo.

A commitment to a liberal education dealing with what TS Eliot describes as ‘the preservation of learning, for the pursuit of Truth, and in so far as men are capable of it, the attainment of wisdom’ has long been jettisoned in favour of using education to overthrow capitalism and undermine Western societies denounced as Eurocentric, racist, and misogynistic.

The school curriculum, in areas like Climate Change, gender and sexuality, multiculturalism, and Indigenous studies, is dominated by the cultural-Left. Generations of students have left school convinced about the impending apocalypse caused by man-made global warming, that gender and sexuality are social constructs and Western Civilisation is riven with structural sexism, racism, and xenophobia.

In her 1983 speech to the Fabian Society Joan Kirner, one-time Education Minister and Premier of Victoria, argues education has must be reshaped as ‘part of the socialist struggle for equality, participation and social change, rather than an instrument of the capitalist system’.

University faculties preach a rainbow alliance of liberating ideologies ranging from deconstructionism and postmodernism to radical gender, feminist, queer, and post-colonial theories. Trigger warnings, safe spaces, and diversity guidelines based on identity politics and victimhood abound.

Such is the destructive impact of cultural-Left ideology on universities, the ANU’s Pierre Ryckmans in his 1996 Boyer Lectures argues universities have long since been deprived of their ‘spiritual means of operation’. Ryckmans concludes the ‘main problem is not so much that the University as Western civilisation knew it, is now virtually dead, but that its death has hardly registered’.

For those who have read the Manifesto of the Communist Party by Karl Marx and Frederick Engels, it should not surprise the cultural-Left has long since targeted education as a key institution in its long march to overthrow capitalism.

Central to the Manifesto is the conviction, ‘The history of all hitherto existing society is the history of class struggles.’ Capitalist society subjugates and exploits workers and the aim of the communist party is to overthrow capitalism and achieve a socialist utopia where conflict disappears and all are free.

Marxists argue that instead of education and culture being inherently beneficial or worthwhile, capitalist society and the bourgeoisie use both as instruments to enforce their domination and control. Given its impact on workers, culture is condemned as ‘a mere training to act as a machine’.

Marx and Engels argue concepts like culture, freedom and the law are ‘but the outgrowth of the conditions of your bourgeois production and your bourgeois property’ and communism’s goal is ‘to rescue education from the influence of the ruling class’.

While published in 1848, the Manifesto continues to have a profound impact on schools and universities in Western societies like Australia. Drawing on Louis Althusser’s concept of the ideological state apparatus, where education is employed to impose capitalist hegemony, the argument is curriculum must be radically reshaped.

Instead of being objective and impartial and dealing with wisdom and truth, knowledge is seen as a social construct employed by the elites to indoctrinate students and future citizens to accept as normal what is inherently unjust and inequitable.

Since the late 70s, the Australian Education Union has argued students must be taught Australian society is characterised by inequality and injustice and teachers must decide whose side they are on in the battle against oppression.

The Australian Association for the Teaching of English, instead of formal grammar and syntax and enduring literary works, champions critical literacy based on the works of the Brazilian Marxist Paulo Freire. An approach where literary works are deconstructed and critiqued in terms of power relationships and students are conditioned to be new-age, cultural warriors.

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My other blogs: Main ones below

http://dissectleft.blogspot.com (DISSECTING LEFTISM)

http://antigreen.blogspot.com (GREENIE WATCH)

http://pcwatch.blogspot.com (POLITICAL CORRECTNESS WATCH)

http://australian-politics.blogspot.com/ (AUSTRALIAN POLITICS)

http://snorphty.blogspot.com/ (TONGUE-TIED)

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