Posts Tagged ‘Title IX’

A federal school bathroom policy? Not so fast

The Obama administration has ambitiously asserted, as an application of Title IX, that schools nationwide must make available to transgender students the general bathroom facilities that correspond to their gender identity. To resolve a case now up for Supreme Court review, it is not necessary to reach the merits of this policy; the promulgation of the new policy by guidance letter, without advance notice, chance for public comment and other protections for regulated parties, is enough of a defect to strike it down. [Ilya Shapiro and David McDonald on Cato Institute amicus brief, with law professors Jonathan Adler, Richard Epstein, and Michael McConnell, supporting certiorari review in Gloucester County School Board v. G.G.]

[The Education Department] seeks to change federal law not through notice-and-comment rulemaking as required by the Administrative Procedure Act, but through an informal, unpublished letter written by a low-level bureaucrat. …We call on the Court to take this opportunity to overrule Auer and declare that the judiciary will no longer blindly accept self-serving agency interpretations, but make their own independent determinations based on a searching and reasoned reading of the regulations at issue. Should the Court choose not to overrule Auer, we suggest that—at minimum—it hold that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.

More on Auer deference here, etc.

Higher education and Title IX roundup

  • “Free Speech on Campus: A Challenge of Our Times,” recent speech by University of Chicago law professor Geoffrey Stone;
  • University of Virginia puts professor on leave of absence after comments critical of Black Lives Matter [Hans Bader] “Yes, Brooklyn College really has a Director of Diversity Investigations.” One prof’s experience [David Seidemann/Minding the Campus]
  • “Lawyer: Why the lower standard of evidence in college sexual-assault cases is dangerous” [Robert Shibley] It’s rare for the Education Department’s Office for Civil Rights to stick up in favor of due process rights for accused students, but that just happened in Wesley College case [Jake New/Inside Higher Ed, Tyler Kingkade/BuzzFeed, ED press release]
  • “Northern Michigan University had — and perhaps still has — a policy subjecting students to discipline if they share suicidal thoughts with their peers.” So how bad an idea is that? [Ken White, Popehat]
  • “Historically Black Colleges and Universities struggle with Title IX compliance” [American Sports Council on reporting by David Squires/The Undefeated]
  • “University Of Michigan Gets Lost In The Tall SJW Weeds” [Amy Alkon] Georgetown offers legacy status to applicants descended from university-owned slaves; showy gesture, but anything more? [Scott Greenfield] “American University Student Government Launches Campaign for Mandatory Trigger Warnings” [Robby Soave]

“He was sent on to a case manager in the Gender-Based Misconduct Office…”

…where he was at length told, “Even if I were to agree with you, you know I can’t say anything.” [Ann Althouse] Relatedly, “The Sex Bureaucracy” is the title of the widely noted new article by Jacob Gersen and Jeannie Suk in California Law Review (via Hans Bader):

…we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated domain comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself.

And: “Judge reinstates Brown Univ. student accused of sexual misconduct, blasts ‘organized’ pressure to get him not to” [Fred Barbash, Washington Post]

Campus climate roundup

  • Will the University of Chicago’s new policy on free expression chill professors’ freedom to run their classes in their own way, as some claim? [Alex Morey/FIRE, Howard Wasserman/Prawfs] Jonathan Chait on how the safe spaces debate really isn’t about things like church groups or gay bars; and a judicious Ken White at Popehat on how safe space idea can make sense in private/chosen settings, but not as academic mandate.
  • As federal Title IX enforcement percolates downward: e-mail from administrator at University of Alaska, Fairbanks, discusses expelling “perp” before investigation has begun [K.C. Johnson on Twitter] USC administrator: do they know who I am? [same] Wasn’t Columbia U. just serving up what its customers want? [Scott Greenfield] “OCR to Frostburg State University: Common Sense, ‘Reasonable Person’ Standard Violate Title IX” [Robby Soave]
  • UW-Milwaukee poster campaign warns students against using terms like “lame,” “crazy,” and — inevitably? — “politically correct” [Jillian Kay Melchior/Heat Street, Robby Soave/Reason]
  • The future of American higher education: fewer historians, more chief diversity officers [David Frum]
  • “More on the sex panic at Yale” [KC Johnson, Minding the Campus]
  • Capitol Hill Republicans keep shoveling cash at power-mad campus regulators, while tying hands of dissenters at the U.S. Commission on Civil Rights [John Fund, NR]

Schools roundup

  • Microaggression: you’re outta here. Smash vintage stained glass window on purpose: welcome back to Yale family [Inside Higher Ed, John McGinnis]
  • “Florida teenager threatens to sue after failing to make cheerleading squad” [New York Daily News]
  • “Did Chicago college fire professor because of his advanced age (illegal) or because he plagiarized 10,000 words in his textbook (legal)? Seventh Circuit: The evidence points to the latter.” [John Ross, Short Circuit]
  • Federal edicts on school discipline require educators to punish innocent, refrain from punishing guilty [Richmond Times-Dispatch editorial] Racial review of school discipline policy not working out well in St. Paul, Minn. [Katherine Kersten, The Federalist] De Blasio in NYC [Bob McManus, City Journal]
  • U.K.: head of lefty National Union of Students blames privatization of education for young people’s joining Islamic State [Nicola Woolcock, The Times]
  • “Does Title IX Prohibit Sexual Harassment in College, But Require It in Locker Rooms?” [Robby Soave, Reason]
  • FIRE backs suit over Dear Colleague letter

    With help from FIRE (the Foundation for Individual Rights in Education), a former University of Virginia law student has sued the U.S. Department of Education Office for Civil Rights arguing that it violated the law in its notorious 2011 Dear Colleague letter requiring many campuses to roll back the procedural rights of students accused of sexual assault. The John Doe complainant argues that the department should at a minimum have put the policy shifts proclaimed in the letter through the notice-and-comment process prescribed for rulemaking, rather than in effect proclaiming them by decree through subregulatory guidance. The letter affected the student’s own case, he argues, because of comments from the retired judge deciding the case that she viewed the evidence as falling short of a clear and convincing threshold, the standard formerly in use, and ruled against him only because the university had complied with federal guidance by dropping its standard to preponderance of the evidence. [Susan Svrluga, Washington Post; Hans Bader, CEI]

    ALI turns down proposal to redefine criminal sexual assault

    “In a rebuke to a feminist idea that has migrated from college campuses to mainstream culture, an influential legal group overwhelmingly rejected Tuesday a provision that would have endorsed an ‘affirmative consent’ standard for the purpose of defining sexual assault.” [Bradford Richardson, Washington Times] The American Law Institute proposals, which would have significantly expanded the definition of criminal sexual assault, had drawn sustained criticism from some civil libertarians [Stuart Taylor, Jr., John Fund, Ashe Schow/Washington Examiner; more, Scott Greenfield first and second posts] The ALI project in general is supposed to be aimed at restating courts’ current consensus in applying and interpreting the law, but often becomes the scene of efforts to tug the law in one direction or another. “Affirmative consent” has made inroads as a standard in the college disciplinary setting.

    Deirdre McCloskey on the bathroom battle

    I was hoping/waiting to hear what eminent economist Deirdre McCloskey, born Donald, would have to say about the transgender bathroom flap. Wish granted, thanks to Warren Coats and his blog:

    Before I “passed” (surgery, working at it) I was frightened to go into a ladies’ room, but I could hardly go into a men’s room in a dress. You can imagine how dangerous that would be! I was allowed to put Female on my driver’s license in tolerant Iowa in 1995. But you are right that it is unwise in such matters if nothing much is going wrong to stir things up. I’ll bet now that Iowa has rules from the state. Then it was left to Iowans’ ample common sense. My passport F was tougher—I wept to the woman at the New Hampshire passport office, and she relented and sent my passport the day before I was boarding a flight to go to Holland to teach for a year, in January 1996. So the State Department unofficially was cool. A year later I tried to get Harvard to change my degree from Harvard College class of ’64 to the women’s college, Radcliffe. The male dean I spoke to thought not. I whined, “But the State Department had no problem giving me an F passport.” With a smile in his voice he replies, “But Harvard is older than the State Department!”

    “There’s more on all this in my memoir of my transition, Crossing: A Memoir (1999 University of Chicago Press).

    “The bathroom “issue” is entirely phony. It has never been a problem. Anyway, if men wanted to sneak in (they don’t), they could always have done so, with or without North Carolina’s law. How is it to be enforced? DNA testing by the TSA at every bathroom door? Anyway, your house has a unisex bathroom, I presume, and in Europe they are not entirely uncommon—after all, the stalls have doors. Etc, etc. On both sides it is just a club to beat up the other side in the silly Cultural Wars, and to make people hate and disdain each other. Adam Smith would not have approved.”

    Meanwhile, Hans Bader argues that the Obama administration stands on very shaky ground both legally and prudentially in trying to impose a single nationwide set of practices by way of Title IX and funding cutoffs, aside from whether that set of practices is in fact the right one. More: Richard Epstein/Hoover, Roger Pilon/Cato, Robby Soave/Reason, Neal McCluskey (no relation)/Daily Caller, and earlier here and here on the North Carolina law.

    Campus climate roundup

    • Department of Justice: we’re going to use that Dear Colleague Title IX letter as a basis for prosecution, and colleges are going to need to crack down on speech if they want to stay in compliance [Eugene Volokh, Scott Greenfield, and FIRE, on University of New Mexico case] A brief history of how we got here from the Dear Colleague letter [Justin Dillon and Matt Kaiser, L.A. Times; my Commentary piece three years ago anticipating the basics] Why won’t even a single university challenge this stuff in court? [Coyote, earlier]
    • Dangers of “safe spaces”: Mike Bloomberg’s Michigan commencement address is getting noticed [Bloomberg View, Deadline Detroit, Soave] “Slogans Have Replaced Arguments” [John McWhorter]
    • Compulsory chapel will make no provision for adherents of dissenting sects: Oregon State plans training incoming freshmen in “social justice learning,” “diversity,” and “inclusivity.” [Robby Soave]
    • Running various departments at George Mason U. along lines recommended by Freire’s “Pedagogy of the Oppressed”: no problem. Naming law school after Antonin Scalia: that might politicize things [Michael Greve via Bainbridge]
    • USC cancels visiting panel of gaming industry stars because it’s all-male [Heat Street]
    • Harvard aims sanctions at students who join off-campus, unofficial single-sex clubs [The Crimson, FIRE, background Althouse, Greenfield]
    • Margot Honecker, hated DDR education minister, filled schools with indoctrination, informants. Glad that era’s over [Washington Post, Telegraph, SkyNews obituaries]

    Campus climate roundup

    • New college freshmen show scant knowledge about or commitment to free speech. How’d that happen? [Howard Gillman and Erwin Chemerinsky, L.A. Times via Josh Blackman] New Gallup survey of students on campus speech [Knight Foundation and report] Greg Lukianoff (FIRE) interviewed [Fault Lines]
    • Senior Ohio State administrator coolly advises protesters that not retreating from their “occupied space” will involve getting arrested and expelled [Eric Owens, Daily Caller]
    • Mizzou’s chief diversity officer asked university administration to assist protesters with logistics. And it did. [Jillian Kay Melchior, Heat Street]
    • No, the regents of a public university should not be saying that “anti-Zionism” has “no place at the University of California.” [Eugene Volokh]
    • “In Her Own Words: Laura Kipnis’ ‘Title IX Inquisition’ at Northwestern” [FIRE interview, earlier] Title IX complainant at U.Va.: that mural must go [Charlotte Allen, IWF]
    • National Coalition Against Censorship, AAUP, FIRE, and Student Press Law Center voice opposition to calls to ban anonymous speech apps such as Yik Yak on campus [NCAC, College Fix, earlier]