Kill Campus Rape Rule, Says House Freedom Caucus Report

WASHINGTON - Jan. 3, 2017 - PRLog -- A House Freedom Caucus Report had just been updated to recommend that the Trump administration roll back 2011 campus sexual assault guidelines that "deny the often-innocent accused basic due process rights" and have "pressured colleges to spend hundreds of millions of dollars and to create vast campus bureaucracies," notes public interest law professor John Banzhaf.

        Incoming Freedom Caucus Chairman Mark Meadows (R-NC) updated the recommendations to follow the very strong position set forth in the Republican party platform which provides that the existing guideline "contravenes our country's legal traditions and MUST BE HALTED" [emphasis added]

        Meadows' updated report says the guidance issued by the Department of Education [DeptEd] "has pressured colleges to spend hundreds of millions of dollars and to create vast campus bureaucracies" to investigate sexual assault and date rape -  "the incidence of which may be overstated."

        The guidance "virtually dictates one-size-fits-all procedures which provide less protection to the accused," the report says, and denies the rights of  "the often-innocent accused."  Indeed, the Wall Street Journal reported that the procedures include even fewer procedural protections than the dreaded Star Chamber, notes Banzhaf, who has helped students fight against unfair proceedings, and has suggested an alternative procedure about to be tested.

        Banzhaf reported that "according to a Risk Research Bulletin put out by insurance company United Educators (UE), student-on-student sexual assaults - which UE termed "a perfect storm - of 'alcohol, mental health, and sexual violence' - cost its members more than $36 million in losses from 2006-2010."

        Since the UE represents only about 1,200 educational institutions - including independent schools and public school districts, as well as colleges and universities - and because, according to many reports, the number of complaints and campus proceedings exploded only after that time period, it is likely that the sum of losses at all colleges and universities to date is much higher and will continue to grow.

        Banzhaf also noted that The Association of Title IX Administrators says it is the "professional home for nearly 7,000 Title IX administrators."

        If each administrator devoted only 50% of his or her time to complaints about sexual assault - especially since little effort is required at this point for assure compliance with the primary and original purpose of Title IX which was to equalize athletic opportunities - and each cost only $200,000 in salary, benefits, support staff, etc., the cost of this alone in student tuition dollars would be about $700 million a year.

        Congressman Meadows is not alone in his concern about the DeptEd guidance.

        Last year, Mollie Benz Flounlacker, vice president of the Association of American Universities, told a Senate committee that the guidance created significant confusion among colleges.

        "The guidance established the expectation that campuses would adjudicate sexual assault allegations based on the 'preponderance of evidence' — a lower bar than the 'beyond a reasonable doubt' standard that applies in criminal cases. The guidance was not developed with public input, and universities were confused about what it required, 'but it took OCR more than three years to issue further clarification.'"

        Though the guidance was not issued through a formal rulemaking process, it is treated as "compliance requirements under the law," Flounlacker said.  This means that, unlike many regulations issued under the Obama administration through the normal notice and comment procedure which will require another such lengthy and complex procedure to change or rescind, this so-called "rule" could be eliminated by the mere stroke of a pen on the first day president-elect Donald Trump takes office, notes Banzhaf.

        That would force the DeptEd to begin a new notice and comment proceeding if it wants to put a similar rule in place, says Banzhaf.  "It is essential that all stakeholders, including colleges and stakeholder groups, be allowed to comment on and inform policies," says Flounlacker.

        The Foundation for Individual Rights in Education has argued for years that the Education Department guidance violates students' due process rights.   By reducing the burden of proof for sexual assault cases, the guidance by definition reduced the amount of certainty needed to issue punishment, said legislative and policy director Joe Cohn.  In response to the guidance, campuses are "actively reducing due process protections, which is increasing the margin of error."

        Cohn said "it is perfectly appropriate to repeal" the 2011 guidance "as long as they really do go through the process of trying to view this from both sides" and adopt policies that protect the rights of both the accusers and the accused."

        Although the very strict if not draconian rules for dealing with allegations of rape are often justified by supporters with claims that women rarely lie, and that the percentage of unfounded rape reports is minuscule [~2%], neither is true.   Indeed, the very study they relied upon shows that 15.6 of reports could reliably be determined as false, and the percentage is probably much higher for reasons stated in the report.

        Banzhaf, a law professor, notes that many of his colleagues - including many who are liberals, female, and even feminists - have also condemned the current campus sexual assault guidance document.

        Banzhaf says that, for all these reasons, the Title IX document will likely be rescinded in the first 100 days of the Trump administration, perhaps even on the first day since it's so easy to do.

http://banzhaf.net/  jbanzhafATgmail.com  @profbanzhaf