by Mitch Kokai
Senior Political Analyst, John Locke Foundation
For years, universities have denied basic procedural protections to students accused of sexual misconduct. Despite the seriousness of such allegations, schools routinely condemn students as responsible without so much as a hearing or the opportunity to confront their accusers. This was supposed to change when the Department of Education’s new Title IX regulations took effect on August 14.
But the more things change in higher education, the more they stay the same. It’s no secret that schools fought the new regulations tooth and nail. Now they are outdoing each other to circumvent them.
Universities resisted the regulations despite the fact that they actually deregulate higher education in important ways, by limiting universities’ liability exposure and narrowing the scope of students’ private lives that universities must police.
But universities clearly want to police their students’ sex lives and are now finding creative new ways to do so.
This is a continuation of universities’ zealous expansion of sexual-harassment policies to infringe upon constitutionally protected speech and academic freedom in ways that could never be enforced in a court of law. Civil anti-discrimination laws already extend to behavior that is severe, pervasive, and objectively offensive, but schools want to push beyond this to accommodate everyone’s subjective feelings of offense. Once sacrosanct, academic freedom is now routinely cast aside in the name of student “comfort” and “safety.” Professors can now teach controversial subject material only at great personal risk. At public universities, where the First Amendment applies, numerous Title IX policies have been ruled unconstitutional by federal courts. No such constitutional protections apply at private institutions.
Things were supposed to change in August, when the new Title IX regulations took effect, with robust free speech and due process protections. Now it appears that many campuses are fighting to ensure these protections remain illusory.