Baylor’s Board Of Regents Blows Title IX Report
June 6, 2016 (Mimesis Law) — Baylor University reacted swiftly following football player Sam Ukwuachu’s sexual assault conviction. Its reaction included creating a new athletics director position to oversee student behavior and retaining outside legal counsel to investigate the school’s “compliance” with Title IX’s purported sexual assault “guidelines.” The law firm’s report isn’t public, but the school’s Board of Regents released a report condemning Baylor’s “wholly inadequate” adherence to OCR’s “Dear Colleague” guidelines.
The report makes it clear Baylor’s remaining Regents care more about federal funding than students, and are clueless on actual sexual assault law.
Baylor failed to effectively implement Title IX in the wake of the U.S. Department of Education’s Office for Civil Rights (OCR) April 4, 2011 “Dear Colleague Letter,” the passage of the Violence Against Women Reauthorization Act of 2013 (VAWA), and related authority and guidance. While individual administrators identified emerging and evolving Title IX and VAWA requirements, the University as a whole failed to prioritize Title IX implementation.
A violation of Title IX carries with it a loss of federal funding, and would force Baylor to rethink its absurd tuition prices. Baylor rushed to ensure compliance with Catherine Lhamon’s “Dear Colleague” letter. One consultation with competent legal counsel could have prevented this nonsense. Baylor opted instead to spend prized alumni donations on “effective implementation and compliance.” This rush to compliance was a poor choice, as explained by Fault Lines Managing Editor Scott Greenfield.
OCR is authorized to administer Title IX, a law duly enacted by Congress. It is a finger of the Department of Education, an arm of the executive branch, whose role is to administer laws. It cannot write laws. It cannot create laws. And while it has the power to regulate laws duly enacted, OCR’s grand vision has never been subject to the regulatory process. It simply appeared in the Dear Colleague letter, and its follow-up letters, created out of an idea by the office-holders that this is what they want the law to be.
There is no legal authority that gives rise to a college or university establishing an adjudication procedure for criminal conduct separate and apart from the criminal justice system. That OCR says so, upon pain of denying federal funding, without having employed the regulatory procedures needed to obtain the authority, seems to have flown over everyone’s head.
It flew over everyone’s head because the first footnote in the 2011 “Dear Colleague” letter* said OCR determined it a “significant guidance document,” according to the Office of Management and Budget. It was Lhamon’s way of justifying her newly created “law” by saying, “we checked with the right people, and this is what you should do, so get to it or you lose money. Baylor, according to the Board of Regents, didn’t bow and scrape at OCR’s feet quickly enough, despite former Chancellor Ken Starr creating a Title IX committee in 2011.
“Promptly upon the campus beginning in 2011, I established this committee,” Starr said. “It was a student-dominated committee with a lot of staff representation. I personally had conversations with Michael Wright, then president of the student body…we had sessions about campus safety generally, which included but was not limited to safety with respect to interpersonal violence. That task force…met regularly.”
Starr said the task force later “ripened into the creation of a committee on campus safety that included a Title IX set of issues (involving sexual assault), so I believe…that the administration was working all along, including designating a Title IX coordinator, early on. I had that designation given to a senior officer.”
None of the Board of Regents’ nonsensical ramblings reflect that Ken Starr, someone with the distinction of serving as U.S. Solicitor General and as a federal judge, might have read the “Dear Colleague” letter, realized it wasn’t law, and still went the extra step to make sure Baylor’s students were insulated from sexual assault. The absence of bizarre programs like a “proactive compliance function” wasn’t good enough for Baylor, which needed to protect its reputation as a safe learning environment. The Regents, and their need to keep funds in order to maintain compliance with a non-existent law, reflects the “damned if you do, damned if you don’t” mindset in academic circles, as Robby Soave muses over at Reason.
The more the activists—including those in the federal Office for Civil Rights, which ensures Title IX compliance—get their way, the more one-sided these campus rape investigations become… But this strategy has consequences of its own, and we are seeing them unfold before our very eyes. Accused students who were disciplined under standards of relaxed fairness are now suing the institutions that deprived them of due process, and they are winning.
This puts universities in a difficult position…complying with Title IX is itself quite costly: universities have to hire scores of coordinators and investigators that grow the administration and drain financial resources. For many colleges, sexual assault is a lose/lose/lose/lose issue.
There’s a fix to Baylor’s woes, as well as the similar grievances of universities facing the same problems. The Secretary of Education needs to get rid of Catherine Lhamon for her work in creating this debacle, retract the “Dear Colleague” letters that rewrote Title IX to suit her (and her predecessor’s) whims, and specifically limit investigations of sexual assault to law enforcement. As Soave notes, this isn’t the “easy fix,” but it’s the right one.
This is one of those cases where the easy thing isn’t the right thing. The long-term public interest is better served by investing actual cops and courts with the power to police rape. If reforms are needed, those reforms should be targeted at the institution that can do the most good, and that institution isn’t higher education.
Baylor’s Board of Regents doesn’t get it, and one suspects they never will, since that federal money means more than compliance with actual laws. It will only cost them more time and money, but one must keep up appearances in academia when it comes to “rape culture.” What remains a mystery is that Baylor had as its president one of the premier legal minds in the nation, and yet ignored Kenneth Starr lest it risk losing a dime to Lhamon’s agenda.
*The 2011 “Dear Colleague” letter was signed by Lhamon’s predecessor, Russlynn Ali.