The College Fix

‘Nothing short of an Orwellian rewrite of the Obama administration’s record’

The Big Lie sure was easier to pull off before detailed government actions were immediately accessible to the public.

Arne Duncan, President Obama’s longtime education secretary, has been exposed as a blatant liar for trying to whitewash his department’s transparent hostility to the rights of college students accused of sexual misconduct.

Showing he has something in common with another serial exaggerator, Duncan went after NBC host Megyn Kelly last week because the former lawyer told her audience that Title IX policy under Duncan “swung the pendulum too far back over against the accused, completely eroding their due process rights.”

The occasion for Kelly’s remarks was a leaked draft of the Department of Education’s proposed regulations for Title IX, the subject of a pending rulemaking (something Duncan’s department never attempted).

“Megyn Kelly is of the few journalists to have consistently raised concerns about the fairness of campus Title IX tribunals,” Brooklyn College Prof. KC Johnson, who chronicles Title IX-related litigation, writes at Minding the Campus.

He notes that three years ago while still at Fox News, she interviewed Johnson about “the egregious case” involving Amherst College. The elite New England private school had ignored text messages that clearly exonerated the accused student and destroyed his accuser’s credibility – because he got access to them after a seven-day appeals window.

MORE: The Amherst case that outraged Megyn Kelly

Kelly said then: “Once you are accused, you’re done” under the Obama administration’s unilateral reinterpretation of Title IX using unenforceable “Dear Colleague” letters.

Rather than staying silent because … well, he can’t intelligently challenge her point about the “pendulum,” Duncan pushed a lie so idiotic it made him look like a White House press secretary.

In just three tweets, he ruined the credibility he had built with sensible middle-of-the-road people. He said something just as stupid about Megyn Kelly as did then-candidate Donald Trump, and even used a hashtag just as stupid as #fakenews.

(1 of 3) Megyn Kelly said we "completely eroded the due process rights of the accused".
Nice sound bite, but she lied.
See p. 2 https://t.co/vzbRKPHoSR

— Arne Duncan (@arneduncan) August 31, 2018

(2 of 3) Megyn Kelly lied- said we completely eroded the due process rights of those accused of sexual assault on campus.
In fact, we investigated Universities who violated Title IX by NOT protecting those rights, and held them accountable
See p. 18 and 21 https://t.co/RVH8Hk87Ft

— Arne Duncan (@arneduncan) August 31, 2018

We didn't just fight to protect their due process, we investigated colleges, & held them accountable for Title IX violations, when they failed to protect the rights of the accused.
Please see my previous tweets with specific, concrete examples
Any further questions?#FactsMatter https://t.co/cU5rNPEG8K

— Arne Duncan (@arneduncan) August 31, 2018

Anyone who closely followed Title IX policy in the Obama administration and is not a rape-culture ideologue knows that Duncan’s supposed countervailing examples are not remotely representative of his department’s behavior.

As Prof. Johnson says:

[E]very substantive change from the Dear Colleague letter (2011) and the 2014 guidance (standard of proof, double jeopardy principles, training, discouraging cross-examination, hastening the adjudication) increased the likelihood of a guilty finding. The President and Vice President both spoke publicly about the need for colleges to crack down on sexual assault; neither ever even hinted at the importance of due process. Nor did [the department’s Office for Civil Rights] head Catherine Lhamon in her public comments—though she did threaten to pull funding from any schools that didn’t do her bidding.

Duncan had micron-thin evidence for his claims and ignored the mountains of contrary evidence, Johnson says, particularly the “Dear Colleague” letters that made colleges choose between caving to Lhamon’s funding threats or embarking on an expensive, unpopular, high-risk legal challenge that would trigger campus activists for years.

Instead, the former education secretary cited “a few throwaway passages about due process” in two resolution letters with universities, out of the “dozens” between OCR and schools, Johnson says: “This is nothing short of an Orwellian rewrite of the Obama administration’s record.”

MORE: Feminist law profs urge the feds to give accused students due process

Perhaps a reflection of the times, but it's still extraordinary to see a public official (@arneduncan) call a journalist (@megynkelly) a “liar” for having made a self-evident statement (that Obama adm eroded acc’d students’ “due process rights”).https://t.co/A7nXkDmAXW

— KC Johnson (@kcjohnson9) September 3, 2018

Ashe Schow at The Daily Wire notes that all of Duncan’s examples came late in the Obama administration, after the bulk of the damage from its “Dear Colleague” letters had been done.

The Wesley College resolution in 2016, nearly a year after Duncan’s resignation, was “the only time OCR ruled on a Title IX complaint filed by an accused student while Barack Obama was president,” Schow says: “That they ruled against a single school specifically for such a claim is hardly evidence that they didn’t create the conditions for which the complaint arose in the first place.”

His other two examples don’t remotely support his claim, Schow says:

Students and families I talked to in 2015 and 2016 [the time period for Duncan’s examples] told me they filed complaints with OCR but were rejected. Accused students had to file lawsuits because of how hostile OCR was toward them.

The Obama administration’s policies reflected this. It discouraged cross-examination — a key element of due process — claiming this could “re-traumatize victims.” Vice President Joe Biden constantly discussed the issue without mentioning due process, and Democratic senators began claiming we must “believe the victims” — which meant believing every accusation.

Speaking of Biden, remember when he compared supporters of due process to “Nazis” who marched in Charlottesville?

It boggles the mind why Duncan would peddle such obvious lies, other than trusting that most journalists are so beholden to the “believe the survivor” crowd that he wouldn’t be fact-checked (not a bad guess).

Johnson’s guess is also as good as any.

The likeliest explanation is Duncan (who wasn't much involved w/this area of policy) went to Lhamon & asked whether they had ever done anything that might have been construed as defending due process. This was the best she could come up with,

— KC Johnson (@kcjohnson9) September 3, 2018

MORE: Biden compares due-process backers to ‘Nazis’ in Charlottesville

IMAGE: US Department of Education/Flickr

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