Dear Senator Alexander:
The National Association of Scholars (NAS) is an organization of college and university professors, administrators, graduate students, teachers and public members that seeks to promote high standards in American higher education. We stand for open and civil debate of controversial ideas and issues on campus—and adherence to traditional due process standards in disciplinary matters.
You may remember us from long ago—from 1991 when your timely intervention as Secretary of Education saved several colleges that were threatened with loss of accreditation for their refusal to knuckle under to the forces of political correctness. You got the attention of the bully in that case, the Middle States Association of Colleges and Schools, by holding up its own application for recertification. The NAS was one of the advocates for the colleges and you worked directly with my predecessor, Steve Balch, who helped to organize the opposition to Middle States.
Another occasion has arisen in which your intervention would be very helpful. And you have already demonstrated your interest in it. I speak of the frighteningly successful efforts by the Office for Civil Rights (OCR); the White House Task Force to Protect Students from Sexual Assault; some of your colleagues in the Senate; and many college and university officials to lower the standards of due process, evidence, and fair treatment of the accused in cases of alleged sexual assault on campus.
The National Association of Scholars believes that congressional intervention is urgently needed. We turn to you because you are vigilant against bureaucratic overreach, and because you understand this issue. We commend your efforts and urge that you go further in the particular case of the OCR by clarifying its proper functions and appropriate limits.
We wrote to you recently in anticipation of the Senate HELP committee’s June 26 hearing on campus sexual assault and the response of academic institutions to it. In that letter we expressed our concern with the heavily one-sided approach to the issue that has completely dominated the many other panels and examinations that have taken up the issue of sexual misconduct this year.
In one instance after another, the only testimony solicited seems to come from alleged victims of sexual assault, advocacy groups, or ideologically committed individuals. Senator McCaskill’s recent series of Roundtable hearings unfortunately fit this pattern, as did last week’s widely publicized “summit” on sexual assault sponsored by Dartmouth College. And although the recent HELP committee hearings included some probing exchanges between witnesses and panelists, no testimony was heard from competent witnesses who might have challenged accepted statistics about the prevalence of sexual assaults on campus, or especially from the increasing number of male students subject to egregious miscarriages of justice at the hands of incompetent or ideologically prejudiced campus tribunals charged with hearing complaints. The high-profile Duke Lacrosse team case of 2006 was not an isolated exception. Other cases have not made the front page of the New York Times, but they are increasingly frequent.
In this regard, your exchange during the committee hearing with Assistant Secretary for Education Lhamon, the head of the Office for Civil Rights, was especially noteworthy. You raised pertinent questions about the scope of OCR’s authority, and suggested that the agency had overstepped its bounds and encroached on the legislative prerogatives of Congress.
For the past several years, OCR has been issuing compulsory “guidelines” under which all colleges and universities receiving federal funds – which is to say most of them– must process complaints of sexual assault on their campuses. The new rules mandate some significant departures from accepted standards of due process, and have tilted already flawed campus procedures even more heavily against the accused. Under OCR’s “guidance” requirements, accusers must now be afforded the opportunity to appeal an acquittal, in effect commencing a new prosecution. The new rules also impose severe time limits – 60 days, to be exact - within which schools must resolve complaints, often much less than law enforcement agencies use in conducting similar investigations. And if an accusation of sexual assault results in a criminal prosecution, the school is nevertheless obliged to conduct its own parallel investigation as well.
Most striking is OCR’s imposition of a “preponderance of evidence” standard under which guilt or innocence is to be determined, in place of the “beyond reasonable doubt” standard used previously, and the norm in all criminal procedures. This novel measure, misappropriated from private civil law procedure, sets the bar for a guilty verdict much lower, and has produced many campus-level “convictions” that would be impossible in regular criminal courts. All of this, moreover, was presented by OCR as a fait accompli, with no prior notice or request for public comments as the agency had done with major policy changes previously. On this occasion, schools were simply informed of the new policies and of the obligation to comply with them. Besides the cosmetic introductory remarks about its desire to make college campuses safe for all students and to combat sexual assault, OCR offers no further explanation for the changes. It has remained silent in the face of widespread criticism and protest from academic and civil rights organizations.
We are alarmed too by OCR’s recent re-assertion in April that the “preponderance of evidence” standard must continue as the norm, shortly after Congress, in amending the Clery Act last autumn considered and rejected proposals to incorporate it in the final version. On the face of it, a subordinate regulatory subdivision of the DOE has overridden the clear statutory intention of the legislative body, on no authority except its own customized reading of Title IX. That law provides no basis for what OCR has done. Nevertheless, OCR’s action is currently binding on all recipient schools, who will simply comply rather than risk the loss of federal funding.
We appreciate your leadership on this issue and stand ready to help if our expertise on these matters can be of any use to you.
Peter W. Wood