The Constitution Does Not Apply When Feminist Goals are at Stake

The 2014-2015 academic year has come to a close and by now everybody is familiar with stories of feminist activism, agitation, and even outright hysteria on college campuses. Controversies regarding trigger warnings, safe spaces, and privilege have taken center stage in such extreme new ways that even liberal commentators and academics have begun to speak out against this tide.

None is as potent as the campaign against campus sexual assault and “rape culture,” which student groups and collegiate administrations have been crusading against with almost religious zeal by investigating incidents of sexual violence with extra-legal campus tribunals.

However, the high water mark of this crusade has passed and precipitated a public backlash.  Journalists have been forced to reexamine how they cover sexual assault in the wake of the Rolling Stone-UVA debacle. Colleges are facing numerous lawsuits from male students accused of sexual assault who believe their cases were mishandled.

Are these cases caused simply by the overreach of some media outlets or educational institutions? Alas, if only we were so lucky. These abuses of the millennial social justice movement are rooted in the policy of the Obama Administration and enabled by existing federal law – specifically Title IX of the Education Amendments of 1972.

For the uninitiated, Title IX states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

A simple enough concept, and certainly one that is difficult to dispute. After all, who in their right mind would disagree with a statute designed to provide equal access to educational programs?

The devil – as with any matter of public policy – is in the details. Especially problematic is when those details involve a vague law subject to differing interpretations across presidential administrations, and the distorting influence of federal dollars.

Most US colleges receive some kind of direct government assistance, and a majority of American undergraduates receive federal financial aid. Although the Supreme Court ruled in 1984 that Title IX didn’t apply to schools receiving indirect federal funding, the Civil Rights Restoration Act of 1988 quickly reversed that.

This means that the vast majority of colleges in the US are subject to Title IX because they either receive money directly from the federal government, or because their students who pay tuition themselves receive money from the federal government. And the federal government, while no doubt generous in doling out revenue, can also be counted on to establish conditions for that money. Consider for example how the threat of withholding highway funding has led to every state adopting a drinking age of 21 years.

The Obama Administration, having bought into much of the feminist/social justice narrative of a campus rape epidemic, has shown little hesitation in exploiting this power of the purse with regards to Title IX. By peddling discredited statistics such as “1 in 5 college women have been raped” (if I had 77 cents for every time they did this…), the Obama Administration has attempted to justify extraordinary countermeasures.

Its plan for cracking down on heinous sexual crimes has not involved putting more cops on the street, or encouraging victims to seek legal action against their assailants. On the contrary, it has shifted the burden of identifying and punishing offending students onto the schools themselves. It contends that under Title IX, rape and sexual assault are not just crimes but examples of gender-based discrimination. It is a collective problem that demands collective (or should it be called social?) justice.

This is where the campus tribunals come in. Because the government has compelled colleges to beef up their sexual assault policies or else lose their federal funding, it has created an extra-legal judicial system made up of professors and administrations rather than trained lawyers and police.

Worse yet, in 2011 Vice President Joe Biden announced a new policy requiring these college tribunals use a “preponderance of evidence” standard – i.e., it is “more likely than not” that the accused is guilty – rather than “clear and convincing” or “beyond a reasonable doubt.” This standard is much lower than what defendants would normally face in a court of law.

The Obama Administration is not just tolerating, but obligating that schools deny students their Constitutional right to due process. Students brought before these councils often have no idea what charges are brought against them initially, are not allowed to have legal assistance or to cross-examine their accuser, face social ostracism from the community, and face living restrictions on campus or outright expulsion.

The campus tribunal system is not just a problem for those accused of sexual misconduct, but for victims seeking recourse as well. Many college students seek out their schools’ counseling services or sexual assault resources after being victimized. Schools often do not encourage them to go right to the police, so they may either ignore the incident entirely or pursue justice through the school. The campus tribunals, not being legitimate legal bodies, are very likely to botch an investigation in a way that may benefit a perpetrator or even a false accuser. Emma Sulkowicz – the Columbia student of mattress-carrying fame – first gained public prominence by accusing her university of failing to punish her accused rapist. Paul Nungesser, the man accused by Ms. Sulkowicz, likewise sued the school for failing to protect him from harassment after he was accused. How much in legal fees could have been avoided if the school was never expected to adjudicate that incident in the first place?

Anybody who demands true justice for victims of rape or sexual assault should not be happy with the current system. Perpetrators of sexual violence on college campuses are not just immature kids who have run afoul of their institution’s code of student conduct – they are criminals who should face serious legal penalties.

To suggest that being kicked out of school is a suitable punishment both unfairly condemns innocent students who had no fair opportunity to prove their innocence, and insulates genuine offenders from the real world consequences of their actions. Yet feminist activists and their allies in the Obama Administration and on college campuses have utilized Title IX for its legal expediency – it gives them an opportunity to “talk tough” on sexual assault while in the process undermining the pursuit of true justice and circumventing Constitutional rights.

These policies have only served to politicize and police sexual relationships between college students. It is ironic how quickly the chant of “keep government out of the bedroom” is turned on its head when the Left finds a lofty goal for government to achieve. But then, a more suitable mantra for millennial feminists is that slogan of 1960s radicals: “the personal is political.”

It is clear, at the very least, that serious limitations must be placed on interpretation of Title IX – for these and numerous other abuses under that law. However, this problem, along with many others, is a symptom of deeper issues. Unaccountable fiat rule-making by federal bureaucracies, over-reliance on federal spending, and a politics that prioritizes good intentions over sound procedures and outcomes are all trends that conservatives would do well to speak out against if we hope to dismantle the embedded institutional power of leftism.