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Law professor suggests expanding campus kangaroo courts to work and home relationships

A lot of people in higher ed are wondering how the Trump administration and Education Secretary Betsy DeVos might change the federal rules around campus sexual-assault investigations and adjudications (disclosure).

In her confirmation hearing, DeVos said it would be “premature” to pledge that she would retain the infamous 2011 “guidance” that imposed the “more likely than not” evidence standard and strongly discouraged cross-examination, among other changes.

She also met with a leading critic of the Office for Civil Rights’ “Dear Colleague” letter, Republican Sen. James Lankford, who chairs a subcommittee that oversees federal regulation.

And yet others are wondering why the sweeping mandates from the department – which threatened to revoke colleges’ federal funding if they didn’t comply in full – aren’t being imposed on American society as a whole.

The Chronicle of Higher Education has a feature on how the guidance has upended college practices for nearly six years, and the confusion that preceded it, but it saves the most eye-opening passage until the end:

In fact, some argue that the Obama administration’s admonitions to campuses should have applied more broadly. Peter F. Lake, director of the Center for Higher Education Law and Policy at the Stetson University College of Law, says higher education must do more to expand Title IX outside its own walls — particularly if it wants support for how it deals with reports of assault. The same protections that now exist for college students, he says, should be extended to all Americans.

“It’s hard to make the argument to the American people broadly that we should be so obsessed with Title IX on college campuses when so many millions of Americans are affected by sex trafficking, domestic violence, and workplace violence, and we don’t appear to be caring about those things,” says Mr. Lake. “If we only care about our own bubble and the only people who get access to our help are those inside the fortress wall, it rings pretty hollow.”

Lake has previously said that the Title IX consulting industry should look for other business opportunities under Trump administration higher-ed directives.

But it sounds like he’s suggesting just the opposite here: There’s a killing to be made by importing the Title IX industrial complex into homes, businesses and the legal system.

This work is already underway at the American Law Institute, which tried to quietly redefine “sexual assault” in a “model penal code” to match its definition on many campuses, as well as in California and New York state laws. Think of courts treating “unwanted touching” over clothes and violations of “affirmative consent” (morning kissing) the same as forcible rape.

There’s a counter-effort being led by the Center for Prosecutor Integrity, a due-process group, in the wake of some police departments launching “victim-centered” investigations that mimic campus investigations that favor accusers and tilt against accused students.

Stop Abusive and Violent Environments, a group allied with the center that started its own campaign to “end kangaroo courts,” also just released a report on how Lake’s vision is being implemented by the Justice Department.

The feds are promoting policies that directly contradict scientific research showing a “persistent sex bias in the criminal justice system” against men, particularly black men, from sentencing to police treatment, the report says:

In 2015 the Office of Community Oriented Policing Services (COPS) published a guidance document titled, “Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence.”16 The COPS report makes claims that directly contradict the findings of the studies cited above, instead alleging the bias is directed against women

These assertions of bias against come out of “thin air” — the report does not present the findings of a single scientific study that compares police response to requests for help by male and female domestic violence victims.

The same office put 28,000 federal employees through anti-male “implicit bias” training last summer and awarded millions in grants to implement DOJ’s guidance on “gender bias” in response to sexual assault and domestic violence:

There is no doubt that members of racial minorities and others have experienced discrimination by the criminal justice system. But the COPS Guidance on Identifying and Preventing Gender Bias and its promotion by means of $9.4 million in grant funding are nothing less than Orwellian. Making claims of bias against women that can be readily refuted only serve to undermine the important efforts to end bias against other groups.

Peter Lake’s apparent dream of an America where anyone’s life can be ruined for ordinary relationship behavior, deprived of all context, may be closer to reality than we think.

Read the Chronicle report and SAVE’s new report.

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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