Newsletter - September 2017

To anyone paying attention, it is very clear that draining the swamp is going to be very difficult since the swamp is very deep and there are a lot of people in it.  The swamp has also been muddied by a former President who continually acted as a sovereign king who did not need Congress to solve all of the nation’s problems.  He and his bureaucrats just issued orders that furthered a specific agenda.

A prime example of this philosophy is an Obama administration Title IX policy.  In 2011, the Education Department’s Office of Civil Rights construed Title IX, which bars sex discrimination, as mandating that colleges and universities take a series of actions meant to prevent and punish “the sexual harassment of students, including sexual violence.” This policy prompted campus administrators to set up disciplinary tribunals that lack basic due-process protections for the accused. 

The Office of Civil Rights instituted rules on cross-examination and appeals.  There was informal pressure on schools to institute a ‘single-investigator model’ that turned one person appointed by the school’s ‘Title IX Coordinator’ into a detective, judge and jury.

There was great pressure for schools to show they were “getting tough” on sexual assault.”

The guidance letters from the Office of Civil Rights were not even formal regulations.  Therefore, that department bypassed the public notice and comment rule-making process required by the Administrative Procedure Act.  Education Secretary Betsy DeVos has promised that this would not happen again.  She stated that “The era of ‘rule of letter’ is over.”

The Obama administration put great pressure on schools who therefore dramatically increased personnel in the Title IX offices which created new jobs and entrenched bureaucrats who will resist reform.  California and New York have passed laws which are designed to make it even more difficult for accused students to defend themselves. 

This situation will remain until the Education Department issues specific, detailed rules to ensure fairness.

Discarding the Obama-era guidance would have two immediate effects.  It would eliminate a university’s standard defenses against lawsuits by accused students, which is to claim that they were merely doing Washington’s bidding. 

Second, it would allow the department to implement Title IX policy through new, carefully considered regulations after a period of public notice and comment.  The Foundation for Individual Rights in Education (FIRE) study identifies provisions that would be necessary to achieve a minimum of fairness in campus tribunals – the presumption of innocence, clear notice of alleged violations, sufficient time for the accused student to prepare his defense, impartial fact-finders, access to all relevant and exculpatory evidence, the right to cross-examine the accuser, a meaningful right to legal representation and a meaningful right to appeal. 

Due process should not be a liberal or conservative issue and Mrs. DeVos is not alone in recognizing the problems of the policy put into place by Mr. Obama.  But those on the left who support these policies are furious.  They want her to enforce Title IX “fairly.”

Mrs. DeVos has made clear her determination to enforce Title IX fairly so as to combat the new normal of discrimination against accused students as well as any residual discrimination against accusers. 

Mrs. DeVos’ correction of an Obama over reach is one more move in her tackling the problems in the American education system.  Of course, because of her efforts, the liberal education society in America hates her.  They have accused her of wanting to bring down the public education system.  She has done no such thing.  She has continued in her belief that choice in education is for the benefit of students which involves supporting charter schools and private schools.

Mrs. DeVos has stated the following:  “The reality is, for many students today, they have no choice in the K-12 system and I am an advocate for giving those students more choices – and I’ve been an advocate for giving those students more choices – and I’ve been an advocate for them for 30 years.”

This attitude drives the teachers union crazy.  However, the public school system is not written in our constitution.  Choice is something that so many on the left cannot tolerate.

Tim Russert once interviewed the head of the New York Teacher’s Union.  He mentioned something about what was best for the students.  The Union leader very honestly stated that her first concern was the teachers who were union members and not the students.

This is not to imply that all teachers are unconcerned about their students.  However, it is good to remember that the animosity against Betsy DeVos has a number of reasons and should be examined carefully before assuming that she is an enemy of education.


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