With the exception of what it calls “B-Hed” features about quirky news, the Wall Street Journal typically employs a fairly straight up headline style (unlike The Economist), but sometimes they could use just a little more imagination. Consider today’s front page howler:
Well, duh. Ya think? And especially given some of the understated but devastating reporting in the body of the story:
Campuses have rewritten policies to lower the burden of proof for finding a student culpable of assault, increasing penalties—sometimes recommending expulsion. In the process, schools find themselves in legal minefields as they try to balance the rights of accuser and accused. . .
The policy revisions hark to a 2011 federal directive that campuses crack down on sexual assault. In a “Dear Colleague” letter to every U.S. college, the Education Department told schools they risked federal investigation and financial penalties if they didn’t protect students from sexual harassment and violence under Title IX of the Education Amendments of 1972, which requires gender equity.
The letter told schools to take action if a “preponderance of evidence” indicated sexual harassment or violence—a lower burden of proof than campuses often use for plagiarism.
These paragraphs make clear something that usually escapes notice: the directive from the Department of Education’s Office of Civil Rights is not a formal regulation; it is an informal “guidance” letter, that does not go through the normal Federal Register listing or notice and comment period of most regulations, where such policy “guidance” would probably not withstand the process or legal challenge. This is not an error; it is how the OCR does business. Most colleges and universities comply out of weakness and because they don’t want the bad publicity that would come along with an “investigation” by OCR. It’s a wholly corrupt way of regulating “informally.”
The Journal reports what Glenn Reynolds and others have been predicting: a flood of lawsuits from students whose due process rights are being abridged:
In the past five months, court filings show, St. Joseph’s University, Amherst College and Swarthmore College have reached sealed settlements with former students who were accused of sexual misconduct and sued in federal court. The Education Department says it doesn’t track how many accused students have brought Title IX complaints.
A judge in Mr. McLeod’s case last year granted an injunction preventing Duke from categorizing him as expelled, saying Mr. McLeod “demonstrated a likelihood of success on the merits” of his arguments at a trial now scheduled for February 2016.
I’m guessing as more and more universities have to make big settlement payouts, they (or their insurance companies) will begin to rein in these star chambers.