Written Remarks for EO 12866 Meeting

Non-Discrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (RIN 1870-AA14)

National Association of Scholars

The following is a statement of written remarks delivered for EO 12866 meeting on non-discrimination on the basis of sex in education programs or activities receiving federal financial assistance. NAS continues to push back against the expanded reach of Title IX after the 2011 Dear College Letter.

January 14, 2020

The National Association of Scholars (NAS) is a network of scholars and citizens united by a commitment to academic freedom, disinterested scholarship and excellence in American higher education, which includes the freedom to question and think independently and freedom from ideological imposition.

NAS is grateful for the opportunity to comment on the proposed regulations concerning Title IX.

Since its founding in 1987, NAS has advocated for conditions in American higher education that encourage intellectual freedom and academic excellence. NAS opposes any form of invidious discrimination, such as discrimination on the basis of sex long prohibited by Title IX. NAS further condemns any form of harassment on campus, including sexual harassment, as unacceptable, unprofessional and inimical to an atmosphere of higher learning. That said, given the seriousness of such offenses, NAS just as strongly condemns unfounded, politicized or otherwise bad faith accusations of such behavior as well as an environment that encourages such accusations without regard for facts.

For many years, NAS has exposed and fought against the leftward politicization of the American university, a development popularly known as “political correctness,” which compromises free thought and free speech in favor of fashionable political causes such as radical feminism, environmentalism, socialism, “social justice,” climate change and now global sustainability movements. NAS has documented the political uniformity of faculty in the humanities – where left-of-center Democrats outnumber Republicans 50 to 1i – as well as the overtly ideological nature of classes taught and the overtly ideological content of faculty publications.ii

It was into this politically charged atmosphere that President Obama’s Office of Civil Rights issued its April 2011 Dear Colleague Letter (the “DCL”) announcing that sexual violence was a form of sexual discrimination prohibited by Title IX. This sub-regulatory document effectively required American college campuses to find and punish offenses formerly and more properly processed in the criminal justice system. Like many others, NAS watched with alarm as campus officials alleged without evidence a college rape epidemic, and further encouraged students to file Title IX sexual misconduct complaints in campaigns such as “Know Your Nine.”

At the same time, the DCL lowered the standard of proof for a finding of sexual misconduct (from clear and convincing to preponderance of evidence), discouraged cross-examination of witnesses and of the accuser, expanded definitions of sexual discrimination and, as accused students were summarily escorted off campus, seemed to do away with the presumption of innocence.

Almost nine years later, the DCL’s damage is undeniable: Almost five hundred cases have been filed in court alleging due process deprivations or contractual violations by schools, with half resulting in favorable rulings for students wrongly accused.iii

Those complaining of sexual misconduct have also suffered, feeling re-victimized by or dissatisfied with the Title IX process, too often run by staff with limited legal training.

NAS, therefore, commends the Trump Administration and Education Secretary Betsy DeVos for reevaluating current Title IX practice and, in September of 2017, for formally rescinding the Obama Administration’s 2011 DCL.

NAS further commends President Trump’s ED Office of Civil Rights for its November 2018 proposed regulations and in particular its formal observance of the Administrative Procedures Act allowing public input, as opposed to the more informal sub-regulatory guidance of prior administrations, rightly criticized as undemocratic and representing administrative over-reach.

NAS is especially supportive of the proposed regulations’ return to a strict, more objective and education-related definition of sexual harassment as Title IX sexual discrimination in accordance with United States Supreme Court standards rather than the broader and more subjective definition of “any unwelcome conduct of a sexual nature” used in prior agency instruments. (“The Department defines “sexual harassment” to mean either [quid pro quo proposition] or unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity …”) Offenses such as sexual harassment, which are serious for both the complainant and the accused, should not be defined by subjective or possibly arbitrary standards.

NAS also agrees that outside advisors or counselors should be involved in campus proceedings on an equal basis for both parties. (“Section 106.45(b)(3) Investigations of a Formal Complaint …. We propose adding sec. 106.45(b)(3) … a recipient must …. provide parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, and not limit the choice of advisor or presence for either the complainant or respondent in any meeting or grievance proceeding; however, the recipient may establish restrictions regarding the extent to which the advisor may participate in the proceedings as long as the restrictions apply equally to both parties …”)

NAS especially supports the involvement of professionals who are experienced in legal defense and due process protections and who are not internal to recipient schools. Given the leftward politicization on campus, NAS is skeptical that any exclusively in-house proceeding can, in fact, be fair and impartial about claims as emotionally and politically charged as sexual misconduct. The involvement of outside advisors is therefore a sound antidote and welcome feature of the Title IX process.

i National Association of Scholars United States Supreme Court amicus brief in Manning v. Jones, April 20, 2018 at https://www.supremecourt.gov/DocketPDF/17/17-1355/44163/20180420123726072_36284%20pdf%20Manning%20br.pdf; see also The Wall Street Journal “Notable and Quotable,” January 2, 2020 at

and https://www.nas.org/blogs/dicta/diversity-equity-and-inclusion-statement-for-a-merit-raise.

ii National Association of Scholars, What Does Bowdoin Teach? April 3, 2013 at https://www.nas.org/reports/the-bowdoin-project/full-report.

iii See: https://docs.google.com/spreadsheets/d/e/2PACX-1vQNJ5mtRNzFHhValDrCcSBkafZEDuvF5z9qmYneXCi0UD2NUaffHsd5g4zlmnIhP3MINYpURNfVwSZK/pubhtml and https://docs.google.com/spreadsheets/d/1xPUcbL-JaNQqQMt1lszncDbVhwHt92eLaDPfuzEywtA/edit#gid=0.

Image: by David Lienemann for The White House

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