Thursday, July 5, 2012

The 'Dear Colleague' letter is a paper tiger that colleges ought to ignore

Professor KC Johnson points out something startling about the Department of Education's April 4, 2011 "Dear Colleague" letter. He writes that "the central premise of the "Dear Colleague" letter is that the OCR may initiate proceedings to withdraw Federal funding" from any college or university that doesn't change its sexual assault procedures to remove various protections for accused students. These changes, of course, make it more likely that falsely accused, innocent students will be found guilty."  But Professor Johnson suggests that's not just a hollow, but an absurd threat.

What's the basis for that view?  The Jerry Sandusky affair at Penn State. Emails have surfaced suggesting "it's plausible that a conspiracy among senior administrators occurred to defy at least state law regarding the mandatory reporting of sexual abuse allegations." Yet, Professor. Johnson explains, "even that sort of university behavior doesn't rise to the level of what would be necessary to cut off federal funds." He makes a compelling case that cutting off funds to Penn State likely will never happen

"There's only an 'extremely slim' chance that a university whose senior leadership might have conspired to protect a sexual predator will lose federal funds. Yet the OCR maintains it will seek to terminate federal funds to any university that doesn't follow its mandate to weaken due process protections for accused students on campus."

What does this mean for college administrators?  FIRE reports that Universities are not especially enamored of the "Dear Colleague" letter's requirements.  While most schools are reluctantly changing their procedures to meet the mandate of the letter, a prominent exception is Princeton University. It continues to run campus sexual assault disciplinary proceedings using a "clear and persuasive" standard, while conducting a parallel process in sexual assault cases using the preponderance of the evidence standard to determine if there has been a Title IX violation. This means an accused student might be cleared of sexual assault, but the school might have a duty to provide support for the accuser. The Department of Education's Assistant Secretary for Civil Rights Russlynn Ali indicated she wasn't necessarily opposed.  Princeton should be the model all schools follow.

Attorney Hans Bader and others have argued persuasively that the "Dear Colleague" letter's legal rationale is erroneous.  College administrators would better serve their student constituents, advance the interests of justice, and uphold the highest standards of academia by refusing to march in lockstep to the directive of an administrative body that likely has exceeded its legal powers. 

That college administrators should do what they think is correct is all the more obvious in light of Professor Johnson's conclusion that the "Dear Colleague" letter is a paper tiger, a hollow and absurd threat.