The U.S. Department of Education has issued a press release crowing about its “agreement” with the University of Virginia, “ensur[ing] that the university’s handling of sexual violence and sexual harassment complies with the requirements of Title IX of the Education Amendments of 1972.”
You might remember that the University of Virginia was falsely accused of mishandling an alleged sexual assault on its campus, in a Rolling Stone article that turned out to be a hoax. Rolling Stone issued a tepid retraction with no change of policy:
Rolling Stone’s senior editors are unanimous in the belief that the story’s failure does not require them to change their editorial systems.
University of Virginia president Teresa Sullivan issued a similarly tepid apology to those accused of rape—“The story unfairly maligned UVA and many members of our community”—but, unlike Rolling Stone, has agreed to turn over many of the university’s internal processes to the Department of Education.
Sexual assault on college campuses is a problem. The University of Virginia resolution agreement highlights a few policies, which are not solutions to that problem.
First, the “agreement” comes at the barrel of a gun.
The Department of Education has immense leverage over cautious universities because it can revoke the federal funding from these schools.
Second, the agreement requires the University of Virginia to maintain a bloated administrative staff and further inflates the need for that staff with various onerous reporting requirements and Department of Education “pre-clearance” on changes in policy.
Title IX is intended as a remedial statute designed to prohibit sex discrimination by addressing past violations that occur on campus. A pre-clearance regime, on the other hand, would require the school to get approval for any change to the university’s policies, regardless of whether the change is being sought to address a past or current problem or for some other reason.
This not only would expand the scope of the Department of Education’s power under Title IX to remediate a problem, but also would give undue leverage to federal bureaucrats who might not be attuned to the unique aspects of campus culture at a particular university. For instance, one college might need to focus on college parties, while another might need to focus on preventing inappropriate professor-student relationships. A Washington-based pre-clearance process will not effectively or efficiently address sexual assault on the many different and unique college campuses across the U.S.
Third, the agreement perpetuates the problematic “common law” of agency agreements at the Department of Education. Ordinarily, an agreement binds parties only to itself. The Department of Education (along with other federal agencies) uses such agreements as starting points in negotiations with other universities. Given the unnecessarily risk-averse attitudes of most college general counsels, these unchallenged agreements take on a life of their own, creating new policies that never are voted on in Congress.
Please join us on October 8 at the Heritage Foundation to learn more, as we host a number of experts on the subject for “Due Process Goes to School: How to Handle Campus Sexual Assault Cases.”
