Giving Due Process to Accused Men Perpetuates Campus Rape Culture, Say Betsy DeVos’s Feminist Critics.

Lost behind recent, louder political headlines, the controversial buzz this week has been about Education Secretary Betsy DeVos peeking behind the curtains of higher education. She’s scrutinizing the kangaroo courts known as university disciplinary proceedings, and the role of pressure from her own department’s Office of Civil Rights (OCR) in driving the problem. Indications are, she has concerns about what she’s seeing.
 
Regarding issues like alleged hate speech, civil rights violations, or sexual misconduct, universities have gained a bad and well-deserved reputation for trampling the rights of the accused while pressing for politically correct results in support of leftist oppression narratives. University administrators certainly can be overbearing wardens, but a lot of the pressure they are bending to comes from the OCR. DeVos’s willingness to take the issue seriously and consider corrective measures is driving fury and apoplexy on the Left.
 
Enabling rape deniers,” “legitimizing rape,” “embracing misogynists,” “bizarre Christian tilt,” “enemy of victims” are a few of the howls from the liberal blogosphere. These criticism are bogus reactionary leftism. Ms. DeVos is looking into a flawed system that is bad at what it does, cannot adequately supervise hormonal college students of both sexes or protect real victims, often stomps on the accused in an effort to compensate, and sows injustice and broken lives along its relentless path.
 
The New York Times was more evenhanded in its treatment, and reported DeVos is grappling with important dilemmas. “[A] system without due process ultimately serves no one in the end,” the Times quoted her as saying. Still, DeVos is not looking to return to any bad old days of injustice and sexist dismissal: “We can’t go back to the days when allegations were swept under the rug and I acknowledge there was a time when women were essentially dismissed. That is not acceptable.”
 
How things came to this pass follows a convoluted story. In brief overview, universities are operating under a law that is not designed to police college sex. Federal regulators have pressed the law and universities into applications neither it nor they were designed to address. College hook up culture is, arguably, an untamed frontier of a setting to try to enforce modern feminist theories challenging commonly held understandings of consent, and expanding concepts of assault or misconduct. Universities are institutionally incapable of justly adjudicating the tensions and fissures that result.
 
The legal story starts with Title IX of the U.S. Code. Passed by Congress in 1972, that law establishes a simple and reasonable standard: educational institutions that receive federal money may not discriminate on the basis of sex. If they are found to discriminate, they risk losing federal funds. Essentially, it is an education sector supplement to laws prohibiting sex discrimination in employment and public accommodations.
 
In barring sex discrimination, Title IX has been pressed into service of theories that might seem to stretch its original concept, such as creating a de facto quota system in high school and college sports, to ensure that the number of athletic participants accurately reflects the sexual composition of schools. While it has done much good in expanding opportunities, critics assert it has caused harm in forcing to schools to eliminate some sports traditionally pursued by men, and to add new women’s teams to make sure the percentages balance.
 
More recently, it has sparked some scrutiny of the rather male slant of faculties in the hard sciences at major universities.
 
One area federal officials pushed Title IX in recent decades is addressing increased reports of sexual misconduct on college campuses. Since at least the 1990s, often under pressure from federal regulators, colleges have more actively policed allegations of assault or misconduct.This apparently healthful development, though, poses important questions. Certainly, schools should not tolerate known sexual assault or abuse within their spheres of authority. But, does that necessarily mean schools should be the arbiter of when violations occur?
 
Sexual assault is against the law. It is a civil and criminal violation. There are civil and criminal authorities and courts that police and administer justice in these things. Under pressure from activists and regulators, and perhaps a bit of mission creep from turf-building administrators, colleges have moved to occupy this space as well.
 
The record of such intervention has been problematic. It accelerated under a controversial move by the Obama OCR in 2008. College disciplinary proceedings are not courts of law or bound by the codes of criminal or civil procedure. Media attention and federal pressure have generally pushed far more toward protecting victims and punishing predators than to ensuring due process, fair proceedings, and just results. Academic KC Johnson and journalist Stuart Taylor have documented a litany of abuses of accused sexual aggressors: Limited or no access to relevant accusations or evidence; limited access to help by or participation from legal counsel, no right to confront or cross examine the accuser, withholding or exclusion of exculpatory information, such as evidence that suggested sexual contact was voluntary, and, harsh consequences and sanctions, often even before any official hearings or determinations occurred, and so on.
 
 
In 2008, Obama’s DOE kicked the already slanted deck with what is referred to as a Dear Colleague Letter. The letter essentially ordered universities to lower the evidentiary bar for accusers from “clear and convincing evidence” (which was already below the criminal standard of “beyond a reasonable doubt”) to the ordinary civil standard of “preponderance of the evidence” which effectively means even a 1% stronger belief in the accuser’s charges than the denials of the accused requires universities to find for the accuser and deliver punishment to the accused.
 
This intervention by correspondence worked two kinds of injustice. First, it was a change in federal policy without any of the niceties of passing a real regulation, such as chance for public comment and opposition to the change. But, the letter left it sharply clear that schools would comply, or they would risk federal enforcement and loss of funds.
 
Second, an ordinary preponderance standard is grossly inadequate for the ruinous consequences that universities can inflict. A negative finding will result in expulsion, loss of educational opportunities, including enrolling in other schools, loss of employment prospects, humiliation before peers, friends, family, and community. This is not the stuff of a civil damages law suit. It is life scarring.
 
Activists, administrators, and regulators argue that the consequences of sexual assault are worse, and cut and scar more deeply. They are probably right. But that is exactly why there are public institutions whose role it is to apply the law and seek just results. Even in a civil sexual harassment case with lesser potential for ruin than a university “judgment,” an accused has greater rights and standing to defend, answer charges, and seek a just outcome.
 
This is the context that Betsy DeVos is wading into. How did universities become the presumed sexual parents and guardians of student behavior on campus? Is that even authorized by existing law? Are universities equipped for the task? Have the scales tipped too far in pressing for a “conviction”? Would it make more sense to rely on civil and criminal authorities and return the academic focus to education?
 
These are important questions. The Department of Education is appropriately considering them.

Government Beggars, Bluffers, and Bullies, and the Truth about Colorado’s Taxpayer Bill of Rights.

They fib about everything. In their endless campaign to get their hands deeper into Coloradans’ pockets, all the government pleaders, the non-profit advocates, the squinting analysts, and the sniffing journalists agree on their biggest enemy. The main target, the bête noir, the great white whale, public sector enemy number one is the Colorado Taxpayers Bill of Rights, the TABOR Amendment.
 
The taxing crew is forever trying to convince the skeptical public that TABOR, adopted by voters in 1992, has changed Colorado from a bountiful land of milk and honey into a North American colony of Somalia. This post is the first in a Tribe series that will explain why that charge is bogus and the taxers know it’s bogus.
 
The Moaners’ Litany:
 
First lets review a few of the descriptions of TABOR from the taxers.
 
The Denver Post is more measured than most when it says TABOR is “inefficient and ultimately hurtful to our growing state. [snip] TABOR’s powerful check on government spending in reality has been a padlock on the purse-strings. [snip] We are convinced Colorado needs more revenue to fund the quality of life we’ve all come to expect from this great state.”
 
 
The Colorado Fiscal Institute laments that TABOR saddles the state with “antiquated tax policy” that produces “painful results.”
 
The Center on Budget and Policy Priorities warns that TABOR is a “formula for decline” that causes “essentially a permanent revenue shortage” that “slowly starves the services on which state residents rely”
 
And, of course, to protect the children, the National Education Association weighs in to condemn TABOR as
“a proven failure” that is “destroying public services in Colorado.”
 
Simple Proof They are All Dissembling:
 
So, are the critics right? Is Colorado withering on the vine? Does state government lack the resources to provide quality modern services? Does its budget put it in the company the bottom 10% or 5% of states? Or closer to the level of a developing nation?
 
Not at all, any of that. The basic budget fact is that Colorado has about as much money for its population as any other state. Less than some, more than others, and above the national average.
A recent study by the Kaiser Family Foundation (no libertarian outfit) analyzed the budgets of all 50 states, including general funds, federal funds, and other state funds. The study reports Colorado at $6,320, ranks 23rd in per capita spending, right in the pack and a little above the middle.
 
It’s a very interesting list, and poses questions about some of the high and low placers. But, importantly, here are a few of the states that spend less per capita than Colorado: 26. Maine–$5,811; 28. Pennsylvania–$5,746; 31. Virginia–$$5,623; 32. Ohio–$$5,609; 33. Washington–$5,598; 34. Michigan$5,364;
 
As it turns out, California, at $6,420 lands just three spots above our Rocky Mountain home. And if government spending more money is the key to better living, why are so many Californians coming to Colorado? The US average, incidentally, is $5,777, landing between 27 Nebraska and 28 Pennsylvania. Colorado spends 9% more than the national average on each of its residents
.
The takeaway from these figures is that money, like all resources is finite. We all would like more. Your kid’s baseball team holds fundraisers because it needs more. Your school PTA does too. And the Girl Scouts. Every person, family, institution, and government would like and could use more money.
 
But, next time of one of Colorado’s public money hungry sob sisters tells you that TABOR is tightening his/her corset, don’t give in to guilt. Don’t let them off the hook without demanding better information. Smile and ask, why are you such a poor budgeter? Why do you need 9% more than Virginia for decent schools? Why do you need 9% more than Washington for decent roads? Why do you need 8% more than Kansas to provide health and human services?
 
The answers should be enlightening.
 
To be continued…
 
 
 

Universities Fuel Growing Clash Between Fascism and Free Speech

 
An unlikely player is eroding one of America’s crowning contributions to human freedom. In a perverse role reversal, American universities are laying the ground work to alter the meaning of the First Amendment and the protections it has afforded free speech and inquiry for generations. The irony that the institutions thought to symbolize human learning and exploration should be leading the movement to control and restrict those pursuits seems lost on the activists and academics pushing that direction.
 

Recent violent and threatening incidents that prevented conservative or anti-leftist or simply provocatively intellectual figures from speaking at Middlebury University, Berkeley, UCLA and elsewhere have highlighted growing opposition to speech Leftist don’t want to hear. It’s not a new phenomenon. Researcher Stanley Kurtz reminds that protests to silence conservative speakers reach back to disrupting figures from the Reagan administration in the 80s, and have continued intermittently for speakers identified with Israel or the second Bush administration.

 

What’s changed is that the frequency and variety of incidents of mob censorship seem to be accelerating, students and activists are becoming more brazen and unyielding in their demands, they are taking their mission from the campus out to the streets, and university faculties and administrators are increasingly siding with the students and providing intellectual cover for the suppression of unwelcome ideas.
 
Now, we have unruly mobs not only blocking events on campus, but violently disrupting rallies supporting Trump on public streets. Berkeley’s paper, the Daily Californian publishes an essay by unidentified members of antifa–anti-fascist as they style themselves–asserting that to protect free speech and community safety, they will don masks and “militantly” disrupt speech they oppose.
 
We have the student government of Middlebury College–where hooligans recently chased off campus the eminent sociologist and author Charles Murray and injured the neck of the liberal professor who dared to accompany him—adopt an extraordinary resolution rejecting punishment for the disruptors. The audacious document declares that protest is a legitimate avenue not only to be heard, but to “compel decisive actions” by institutions. (Nice of them to let us know who is in charge). It also rejects resort to law enforcement because “arrest and criminal charges are associated with police violence and the carceral [sic] state,” smack of “the new Jim Crow,” stigmatize the protesters, and chill their future opportunities.
 
If this strikes you as lunacy, don’t look for backup from the “adults” running the university. Ulrich Baer, a professor and dean at New York University recently penned an essay in the New York Times “What the Snowflakes Get Right About Free Speech” siding with the students: True “free speech” should be understood to protect marginalized and victimized segments of society from dehumanizing and oppressive ideas of more powerful segments.
 
This creeping unofficial amending of the First Amendment is not going unchallenged. Legal Rights organizations like the Foundation For Individual Rights in Education (FIRE) have represented students and won many important cases against abusive campus actions. But, the victories can be Pyrrhic as universities are some of the wealthiest institutions in society. Litigation can drag on for years, recoveries are usually modest in amount, and school coffers barely feel a sting. Universities are either more fearful of, or likely more ideologically aligned with the leftist militants on campus than they are about an occasional legal setback.
 
Recognizing this dynamic, some commentators propose congressional action to reclaim liberty on campus. Legislation could change universities’ cost benefit analysis either by withholding federal funds from institutions that fail to protect free speech on campus, and allow mob veto to disrupt the rights of others, or awarding much higher levels of damages to students and faculty whose rights are trampled.
 
The debate is heating up. It’s not as if Congress has proposed a Constitutional Convention or study committee to reconsider the meaning of the First Amendment. But, leading harbingers of culture and education certainly have. The Convention is underway and the future of freedom is at stake.
 
 
 
 
 
 
 
 
 
 
 

Trump/DeVos Looking to Pull the Federal Boot Off Education’s Back.

Keeping a campaign promise, President Trump signed an executive order yesterday directing Education Secretary Betsy DeVos to review federal overreach into state and local management of K-12 education. On the campaign trail, Trump had promised to try to pull Washington back and restore authority to states and communities.

 
This is good news for education for several reasons. Washington’s involvement in education creates a redundant layer of control and expense without adding value to teaching or learning in the classroom. Congress isn’t and shouldn’t be a 535 member national school board governing from the East Coast. An institution laboring under the dysfunctional leadership of partisans like Harry Reid, Nancy Pelosi, Mitch McConnell or Paul Ryan, should stick to trying to clean up the federal government’s act, not sticking their noses into local classrooms.
 
Similarly, the United States Department of Education isn’t and shouldn’t be a super national District Administration pulling strings across the country. But that’s close to the reality of the the federal impact. Compliance with rules, regulations, red tape, and passing whims of national figures (Michelle Obama’s misguided lunch crusade comes to mind) creates huge administrative burden and expense for school districts. A lot of district professional and legal staff is driven by the need to track, understand, and comply with federal statutes, regulations, and “guidance letters.”
 
It would be one thing if the national burden improved classroom results. But, there’s no evidence this is the case. The Department did not even exist until October of 1979, and was birthed by Jimmy Carter as a reward to the national teachers union for endorsing his run for president. Since then, student achievement and test scores have not improved, but have continued to languish in mediocrity relative to other advanced nations.
 

A serious problem in addressing the unhelpful behemoth is that interest groups, particularly union interests, treat criticism of the federal role as if it were criticism of the concept of education, as if pulling Washington’s paws back were the same thing as razing the local school house. When interest group power grabs meet political grandstanding and fearfulness, good policy suffers.

American communities elect local school boards and state legislatures. These institutions have all the authority and resources necessary to administer a quality education system, and did a good job for most of America’s history. Transferring more power and money to DC has not improved education. The former bodies are closer to, more representative of, and more accessible to the families they serve than the remote federal government. Trump’s directive to DeVos to figure out how to restore more authority to states and communities is a healthy step. It doesn’t actually grant her any additional power as she already has authority to administer and change Department priorities and actions. It does, though, give direction and stature to her task and demonstrate that she has the president’s support in her efforts.