One of the most damaging policies of the Obama administration is not as widely known as Obamacare. While the issue of campus sexual assault continues to be a hot topic in the media, much of the general public remain unaware of far-reaching policies that have led to distrust among students and the evisceration of the presumption of innocence and other due process rights on college campus.
The main cause is a 2011 guidance document – or “Dear Colleague” letter – issued by the Education Department’s Office for Civil Rights. That letter required colleges and universities to us a “preponderance of evidence” standard when adjudicating accusations of sexual assault, a standard that means administrators or professors or even students just have to be 50.01 percent sure the assault actually occurred.
Given the administration’s focus on campus sexual assault and the media’s insistence that the problem is rampant on college campuses, it has become quite easy for schools to expel or otherwise punish accused students.
One Republican lawmaker, Sen. James Lankford of Oklahoma, has vowed to “stop the practice of using the office as an unchecked regulatory entity.”
Lankford, speaking to the College Fix’s Grace Curtis via email, said some of the “most egregious examples of executive overreach and intimidation” came from OCR. He added that he believed that type of overreach led to Donald Trump’s election in November.
Lankford has previously shown interest in overturning the policies of the Obama administration when it comes to the 2011 Dear Colleague letter. In January 2016, he sent a letter to OCR requesting statutory or regulatory justification for the preponderance standard and other policies. In response, OCR provided no such justification, stating that it had the authority to create new regulations for colleges because other Dear Colleague letters went through the proper notice-and-comment period and because many colleges were already using the lower standard of proof.
The preponderance standard – which did not go through a notice-and-comment period – have resulted in students being expelled for what may have been a misunderstood kiss.
“In essence, the federal government has created a sex bureaucracy that has in turn conscripted officials at colleges as bureaucrats of desire, responsible for defining healthy, permissible sex and disciplining deviations from those supposed norms,” Harvard Law professors Jacob Gersen and Jeannie Suk Gersen wrote for the Chronicle of Higher Education. “The results are not only cringeworthy but also unfair, potentially racially discriminatory, and detrimental to the crucial fight against sexual violence.”
It is those policies that Lankford wants to target. He has not said that he wants to demolish OCR, but that he wants to rein in its excesses.
“The new leader of the Department of Education, and especially the Office [for] Civil Rights, must restore the action of the office to their original construct and stop the practice of using the office as an unchecked regulatory entity,” Lankford told the College Fix.
Wanting to rein in OCR, improve due process or return the presumption of innocence does not make someone pro-rape, although that accusation will certainly be lodged at anyone in the Trump administration who tries to bring sanity back to college campuses. Progressives who once declaimed against government in the bedroom have since 2011 been intimately involved in the sex lives of college students, creating a culture of fear among women by broadening the definition of rape to include anything a student later regrets or doesn’t like.
It’s time the government gets out of college kids’ bedrooms and starts acting like rape is the heinous crime it is that shouldn’t be dumbed-down or handled by amateur investigators.