An assistant secretary of education thinks she can rewrite rape law by writing a letter.(Photo: Chris Pietsch, The (Eugene, Ore.) Register-Guard via AP)
It appears to many — including me — as if theObama administration is engaged in a war on college men. Using debunked statistics, the president, the vice president and various other political officials have falsely claimed that there’s an epidemic of rape on college campuses, even though campus rape is, in fact, falling, just as off-campus rape is. (And, in fact, rape is less common on campus than off).
And, ever since the Department of Education issued a ”Dear Colleague" letter to universities in 2011, in essence ordering them to adopt new and draconian campus “sexual assault” rules that treat accusations as presumptively true and force the accused — almost always men — to prove their innocence, sometimes even very strong evidence of innocence is ignored.
Spearheading this effort has been Assistant Secretary of Education for Civil Rights Catherine Lhamon, who has characterized the letter as binding on colleges and universities even though it is not a law, was not adopted as a formal or informal rule making after notice and comment under any law, and appears to have very little to do with the federal anti-discrimination law Title IX, which says only that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
Title IX was supposed to force colleges to admit women to programs formerly reserved for men. The law says nothing about sexual assault, sexual harassment, or the duty of universities to investigate criminal behavior on their own instead of referring crimes to law enforcement. But through a period of interpretation and reinterpretation, that simple statutory language has produced reams of federal paperwork that, in effect, turn a simple academic non-discrimination rule into a rape law that lacks the due process protections and evidentiary standards of actual rape law.
Now it appears that Congress has noticed. Sen. Lamar Alexander, R-Tenn., crashed a Senate hearing last week to grill Deputy Assistant Secretary of Education Amy McIntosh about past statements by Lhamon that purported to establish the “guidance” letter as binding law. How could this be binding, asked Sen. Alexander, when it’s simply a letter issued without any of the procedures required for administrative rule making?
McIntosh didn’t offer much of an answer, and that’s because there isn’t one. As some, including Ari Cohn, have argued for a while, the Department of Education is acting unlawfully here.
A law, to be binding, must pass both houses of Congress and be presented to the president's desk, where it must either pass into law or be vetoed and then overridden by a two-thirds vote of each house. Because this procedure, which the framers of our Constitution designed in order to make lawmaking difficult, turns out to make it difficult to pass laws, we also allow administrative agencies to issue regulations that are binding as law. But those regulations can be issued only after a draft is published and the public has a chance to comment, via either formal or informal rule making.
A mere letter from a bureaucrat, which is all the “Dear Colleague” letter is, has no binding authority. At most, it suggests that the bureaucrats might be willing to go to court to try to convince a judge that their interpretation of the statute is correct.
So why did colleges roll over? Law blogger Scott Greenfield suggests that it’s because the colleges are also warring against college men: “After all, why should a college risk the loss of its lifeblood (federal money) for the sake of protecting a few guys, particularly when the colleges pretty much agree with Lhamon’s progressive ideals?”
Greenfield notes that once Columbia University was sued by a male student claiming that his Title IX rights were violated because of the university’s response to a false accusation, it changed its mind and decided that Title IX didn’t create much in the way of student rights after all. Greenfield concludes: “Regardless of whether one embraces the policy choice embodied in Lhamon’s ‘Dear Colleague’ letters or not, there is no doubt but that it was imposed without lawful authority and adopted by schools who chose to sacrifice one segment of their student population to appease another segment. This is not the law. This is not what Title IX mandates. And they know it, even if you don’t.”
Greenfield is right. It’s nice that members of Congress are taking notice. But male college students and their parents, as well as alumni and trustees — and those women noticing that there’s a shortage of college-educated men all of a sudden — need to ask why there’s a war on college men, and why colleges, seemingly, are on the other side.
Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself, and a member of USA TODAY's Board of Contributors.
In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors. To read more columns like this, go to the Opinion front page.