Harvard Law Fights Awful Ed Department Rules: Bravo, But No School Should Have To
One of the salient features of the Obama administration has been its willingness to toss aside the rule of law whenever getting a result that its zealous officials and supporting interest groups want collides with fundamental fairness. Over the last couple of years, that impulse has manifested itself in the brazen demands by the Department of Education that colleges and universities abide by its regulations concerning sexual harassment and assault.
The notion that America’s campuses are gripped by an epidemic of sexual assault and tolerate a “rape culture” has never had any basis in fact. It is, however, a meme popular with the feminist left – a hobgoblin they find useful. Efforts at boosting it, such as the infamous Rolling Stone article about an evidently fictitious rape at the University of Virginia have flopped disastrously.
Nevertheless, the Department of Education’s Office for Civil Rights (OCR) has been on a national blitzkrieg to compel colleges and universities to follow its blatantly one-sided rules for the adjudication of sexual harassment and assault complaints.
The rules, in short, make it extraordinary difficult for the accused student to defend himself.
This proved too much to swallow for a group of 28 Harvard Law School professors, who signed an open letter arguing that the rules are “inconsistent with many of the most basic principles we teach.” Such as?
Well, such as “the absence of any adequate opportunity to confront witnesses and present a defense.” That’s definitely basic to the rule of law in America, but either the OCR bureaucrats are not familiar with that concept, or they’re convinced that finding young men guilty and punishing them is more important than having fair procedures.
My guess is that it’s the latter. Upholding the rule of law is merely an abstraction. To the mandarins in the Department of Education, it’s far more important to push the agenda of the feminist left.
Here’s the deeper question: why should federal bureaucrats have any say in this at all?
Does the Constitution provide that the executive branch is authorized to tell colleges and universities how they must handle student discipline cases? No – no more than it gives it authority to decide what courses will be required for graduation or which books the library must acquire. Education (at all levels) was among the great number of matters that the Founders thought should be left up to the states or the people under the Tenth Amendment.
No part of the federal government is supposed to have any power to control colleges and universities, yet the Department of Education thinks it does.
With higher education, the way the bossy federal camel got its nose under a tent where it had no business was by offering dollars, then pulling on the inevitable strings attached to them. If a college or university takes any federal funds, it must then obey federal regulations. Almost every school gets snared by admitting students who pay for some of their expenses with federal grants or student loans.
There is no constitutional authority for the federal government to give or lend money to students, but once it began doing so nobody stopped it. Now federal bureaucrats have the leverage to force schools to obey them. If they don’t, the flow of money will stop.
A very small number of institutions, wishing to keep their independence from federal bureaucrats, have done what they had to; they’ve rejected federal money completely.
Hillsdale College in Michigan is one of them. The school runs its own student loan system, described here by president Larry Arnn, thereby remaining free of the busybodies in Washington. (Running your own system for helping students finance their education has two other big advantages: it reminds administrators to minimize costs and also helps deter non-serious students.)
While Harvard Law can afford to push back against the OCR, few other institutions dare to. Washington overwhelmingly gets its meddlesome way because most schools are so hooked on government funds that they meekly obey regulators who have the power to shut off the supply.
This isn’t how America was supposed to work, with unelected and unaccountable minions in Washington ordering the rest of us around. We would have avoided that by keeping to the Constitution’s limits on the proper subjects for federal spending.
Although I applaud the Harvard professors for battling these atrocious regulations, I wonder how many would also join the fight to restore federalism.
Article originally published on Forbes.com.
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