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Leading law journal calls Department of Ed’s Title IX letter to colleges ‘unconstitutional and unfair’

It’s not just conservatives and civil libertarians warning that the Department of Education’s Office for Civil Rights exceeded its authority with its 2011 “Dear Colleague” letter to colleges.

The Legal Intelligencer, “America’s oldest daily law journal” and part of the company founded by Court TV founder Steven Brill, writes in a staff editorial that the “mandate” was “unfair and unconstitutional.”

The department has botched Title IX so badly that Congress should just amend it, the editors say:

Recognizing that at least some accusers have historically been mistreated, the department insisted on changes in how the system was to run, but those changes have gone too far and now undercut fundamental rights of those accused of wrongdoing. For instance, the DOE demanded that colleges apply a “preponderance of the evidence” standard in determining whether a sexual assault complaint has merit, and prohibited both the “clear and convincing” and “beyond a reasonable doubt” thresholds. Further, the department dictated that schools should prohibit the accused from cross-examining the accuser, warning that doing so could create a hostile environment—effectively taking the position that everyone accused is guilty, and that having the temerity to question the accuser would compound the trauma.

We know that each of these [due process] rights means that an accusation is less likely to result in a conviction. Yet no serious person proposes doing away with those basic rights, solely for the sake of increasing the conviction rate.

The system is so warped that it even ensnared a professor who only obliquely wrote about a Title IX investigation, the editors note, pointing out the investigation of Northwestern University’s Laura Kipnis:

Like any other person facing such an investigation she was not permitted to know what the charges were against her in advance of her questioning, and she was not permitted to have her own legal counsel participate. This may sound like the stuff of an Orwellian dystopia and one that could never happen in a society committed to freedom of speech. Yet here we are…

Read the editorial.

RELATED: The Laura Kipnis saga: Privacy paranoia runs amok once more on campus

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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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