Stuart Taylor and KC Johnson document for National Review Online readers the Obama administration’s disturbing approach to sexual assault allegations on college campuses.
The administration’s crusade against due process for students accused of sexual assault has relied on Title IX of the Educational Amendments Act of 1972, a brief, unadorned provision that simply prohibits sex discrimination in federally funded educational institutions. It has most famously been used against gender imbalances in college athletics and, more recently, in scientific and technical fields, but in the act’s first 39 years, no administration claimed that Title IX gave the federal government authority to micromanage university disciplinary procedures.
Barack Obama and his appointees adopted a radically different approach. In April 2011, the OCR sent college administrators a 19-page “Dear Colleague” letter that ordered colleges and universities that receive federal funds (as almost all do) to change their disciplinary procedures regarding sexual assault. Each of the required changes — reducing the burden of proof in campus sex cases (and only in those cases) from “clear and convincing evidence” to “preponderance of the evidence,” introducing a form of double jeopardy by allowing accusers to appeal not-guilty findings, and demanding accelerated investigations that hamper the ability of accused students to gather evidence to defend themselves — increased the likelihood of guilty findings.
Worst of all, the letter “strongly” discouraged institutions from allowing an accused student to cross-examine his accuser. And a 2014 missive from the OCR threatened schools that allow such cross-examination — “the greatest legal engine ever invented for the discovery of truth,” as the Supreme Court has repeatedly called it — with a charge of “perpetuat[ing] a hostile environment,” which is illegal.
