How To End the Title Nein Fascism in Five Minutes

By now it is evident even to honest liberals that Title IX is an out of control monster that makes old fashioned political correctness and speech codes look like a John Stuart Mill seminar. The Laura Kipness episode at Northwestern University might prove a tipping point, but I doubt it: between the determination of the will-to-power left, the cravenness of most college administrations (including Northwestern’s feckless president Mort Schapiro—I’ve got a file on him, as this isn’t his first epic failure in academic leadership), and the push from the Alinskyites in the Obama Administration, the Title IX campus brownshirts are likely to roll on.

Jessica Gavora has been warning about the slippery slope of Title IX campus fascism since the late 1990s, and she turns up in the Wall Street Journal Monday with a piece about how Title IX became a political weapon that could well be headlined “I Told You So.”

Since its passage 43 years ago, Title IX has proved to be a remarkably elastic law. It has been stretched and warped from its original intent to end discrimination on the basis of sex in schools that receive federal funding. As long as Title IX’s victims were wrestlers or swimmers from low-revenue men’s sports that were jettisoned to achieve participation-parity with women’s sports, nobody much cared. But now that the law is being turned into a tool to suppress free speech on college campuses, even liberals are starting to cry foul. . .

The road that took Title IX from a classically liberal antidiscrimination law to an illiberal gender-quota regime began in 1996 with an innocent-seeming “Dear Colleague” letter written by federal education officials in the Clinton administration. The letter targeted colleges and universities struggling to answer the difficult question of what constitutes (unlawful) discrimination under Title IX in sports programs that are already segregated on the basis of sex. It instructed schools that quotas—equalizing the participation of men and women in athletics, despite demonstrated disparities of interest—were the way to comply with the law. . .

The movement of Title IX into areas as remote as the mere discussion of sexual politics on campus has followed the same trajectory. Beginning in 2011 the Obama Education Department wrote “Dear Colleague” letters to schools. Suddenly, schools were responsible for harassment and assault that occur off campus. A lower standard of evidence was established to prove the guilt of the accused. Earlier protections for academic freedom and free expression were dropped.

The thing to note here is that the Clinton Administration’s “guidance” on Title IX was what is known in the regulatory trade today as an “informal” rule-making: the regulatory regime does not go through the normal Federal Register notice, public comment period, and judicial review that is intended by the Administrative Procedure Act. This is not an accident: activist liberals know that many of the regulations they want to foist in the world wouldn’t survive this formal process. So they rely on “Dear Colleague” letters that say, “If you don’t do what we say, we’ll investigate you for civil rights violations, and possibly cut off your federal funds.” The Obama Administration ran the same drill with a “Dear Colleague” letter demanding that universities set up investigations of harassment and intimidation claims with a lower evidentiary standard—i.e., without proper due process rights.

While the Department of Education’s Office of Civil Rights has “investigated” numerous universities (the adverse publicity from which most universities dislike), they have never cut off any funds to a university, surely knowing that Congress would not be amused.

Shep Melnick of Boston College has written the best takedown of this whole racket, in “The Odd Evolution of the Civil Rights State” (PDF file). (Shep, by the way, is the Tip O’Neill Professor of American Politics at Boston College, and since I am the Ronald Reagan professor at Pepperdine, I’ve proposed to Shep that we do 1980s Reagan-O’Neill re-enactments at Irish pubs.) Here’s one key passage:

Civil rights regulation contains few clear-cut, publicly proclaimed rules. It rests instead on layer after layer of administrative guidelines, interpretive memos, suggestions included in enforcement handbooks, judicial interpretations of statutes and of agency rules, and even more esoteric judicial doctrines on burden of proof. The sources of these multiple rules and standards are often obscure. Agencies claim to rely on the authority of courts; courts claim to rely on the expertise of administrators; and both judges and administrators claim to follow the commands of Congress.

The informal “guidance” character of the Title IX corruption can be undone in the first five minutes of the next administration, if a conservative is elected. On Inauguration Day, the new president should direct the Department of Education to send out a “Dear Colleague” letter to all colleges and universities that, first, withdraws the Obama DoE Titoe IX guidance letter, and, second, instructs that all colleges and universities that do not follow full formal due process (including the right to have an attorney present at all campus hearings) for all charges of harassment or sexual assault will be investigated by the Justice Department, and may have their federal funds cut off.

Problem solved. Bonus: Maybe a few liberals will start to warm to the idea of abolishing the Department of Education.