Under the Obama administration, the Department of Education (DOE) pushed the "rape culture" narrative — that one quarter of women would be raped or sexually assaulted on college campuses, and that colleges could not trust the police to handle these crimes. This created a perverse system of campus tribunals which denied due process rights to (mostly) men accused of sexual assault.
On Friday, The New York Times reported on an internal memo published by Propublica showing the Trump administration's first steps in overhauling this "sex bureaucracy." The Times interpreted the move as "scaling back investigations into civil rights violations at the nation's public schools and universities."
The memo, written by Candice Jackson, the acting head of the DOE's Office of Civil Rights (OCR), reversed one part of the Obama administration's campus sexual assault policies, but it is an important first step in reforming the system. Under Obama, OCR investigated colleges when women accusers claimed the colleges were too lax on the men they accused of sexual assault.
"Whenever they had an allegation by some student that her Title IX rights had been violated by a college, they would not only look into the particulars of her complaint and fault the college for not giving her what she wanted, but they would launch a systematic investigation going back for years," Stuart Taylor, co-author of the book The Campus Rape Frenzy: The Attack on Due Process at America's Universities, told PJ Media.
"They would even pressure the colleges to retry accused males who had been found innocent before, exposing these guys to double jeopardy," Taylor added.
In other words, when a woman complained to OCR that her college was not penalizing the man she accused of rape or sexual assault, OCR wouldn't just investigate her case (assuming that the accused man was guilty). The office would also delve into the college's past, attempting to find previous cases where the school was too easy on accused students.
This practice demonstrated the "rape culture" narrative's insistence on over-exaggerating the likelihood of sexual assault on campus, and pushing the idea that every woman who accuses a man of sexual assault should receive the benefit of the doubt. In fact, almost nine out of ten colleges reported zero sexual assaults in 2015.
This policy was "based on a false assumption that [sexual assault] is widespread in the colleges," Taylor explained. "I frankly doubt that there's more than a handful of colleges across the United States that have systematically discriminated against accusers." His book is full of examples of colleges discriminating against the accused.
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Launching such wide-ranging investigations into a college's past wastes time and precious resources, the author argued. "It diverts resources into university-wide fishing expeditions that are probably a waste of everybody's time at best from cases where there really are big problems."
Taylor argued that these groundless in-depth investigations made it harder for the OCR and for colleges to deal with cases rightly, making it less likely that genuine victims of sexual assault are vindicated. He praised Jackson's memo as trimming this practice so the OCR can focus on more important cases.
"It will work a lot more efficiently for any genuine victims of sexual assault once you do away with using any complaint as a pretext to try to establish broad federal oversight over any university they can get their hands on," Taylor explained.
But the Times also reported a second aspect of the memo — these long-term investigations had reportedly uncovered evidence of racial discrimination in terms of discipline. A DOE investigation found the schools with higher percentages of black students established stricter discipline, and that black students received discipline more than white students.
Taylor attacked this as a red herring on the issue of sexual assault tribunals. In fact, "there is evidence that black men are being disproportionately accused" of sexual assault, he argued. This means less pressure from the OCR on colleges to push rape culture tribunals would actually help black people.
Furthermore, there are reasons that black students tend to receive more punishment in schools than white students, and it's often for the benefit of the other black students.
"My impression is that the Obama administration was under the OCR imposing racial quotas on school discipline on the basis that if black students are more likely to get suspended than white students that must mean they are discriminating against the black students," Taylor explained.
The author attacked this as "a terrible abuse of federal power," because "there is not much evidence of real discrimination." Instead, "there is evidence of disproportionate disruption."
Indeed, Heather Mac Donald, author of The War on Cops: How the New Attack on Law and Order Makes Everyone Less Safe, has presented evidence that violent criminals are disproportionately black, so it stands to reason that a disproportionate amount of school disruption may be caused by black students.
But ironically, it may be the good black students who benefit most from the disciplining of disruptive students. "A lot of the kids are in mostly black or all black schools," Taylor argued. "When you put pressure on the school district to keep the disruptive students in class, it's probably destroying opportunities for other blacks to learn."
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So this new memo, far from undermining the DOE and OCR's dedication to civil rights, arguably bolsters that dedication and helps black students — both those disproportionately accused of sexual assault, and those hampered by disruptions in the classroom.
But the day after the memo was published, a former Obama administration official launched a two-year investigation into the DOE and Education Secretary Betsy DeVos. The investigation attacked DeVos' "repeated refusal in Congressional testimony and other public statements to commit that the department would enforce federal civil rights laws."
Catherine Lhamon,head of the OCR under Obama and now chair of the U.S. Commission on Civil Rights, launched the investigation Friday. "I think this is more evidence that Catharine Lhamon is a blinkered ideologue who is all about Left-wing propaganda," Taylor quipped.
"It doesn't surprise me that she's abusing her powers again," the author said. "Based on the public record, I'm not surprised to see her doing something manifestly unreasonable."
Even The New York Times reported DeVos' clear denunciations of discrimination in any form, but warned that "she also believes in a limited federal role in education." As Taylor explained, restraining OCR after the Obama administration's overreach would be a very good thing.
"Not only should the new administration throw out everything the Obama administration had done on the campus rape front, it should also try to undo some of the harm the administration had left in place," the author argued.
Following terrifying stories of accused men being denied the ability to defend themselves, Taylor suggested that the DOE launch "a regulatory proceeding to accumulate evidence that a lot of colleges are now systematically discriminating against males in violation of Title IX in prosecution of campus sexual assault."
Title IX bars discrimination on the basis of sex. It was passed in 1972 to protect women, but after the clear bias against men accused of sexual assault, it should arguably be employed to protect these men.
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"The Obama administration was grotesquely biased against the accused," Taylor noted, who are disproportionately male. While the OCR did not run the campus rape tribunals — which are handled internally by colleges and universities, at the request of the Obama DOE's 2011 "dear colleague" letter — this memo might relieve some of the pressure colleges feel to unfairly prosecute accused men.
"One reason the colleges have been so frenzied about destroying due process for all accused males is that they're afraid the federal government is going to hit them if they're fair," Taylor explained. This memo is the first step in relieving that pressure.
"This is a very good move, and I think it's a sign that more moves are to come," the author concluded.
Given the immediate attack from Lhamon, however, DeVos and Jackson have their work cut out for them. The Trump administration should expect to run into even more stonewalling from Democrats and Obama holdover liberals as it fights to right the wrongs committed under Obama. No one said this was going to be easy.
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