While it’s clear to those who labor under the limitations of law that colleges and universities adoption of the “guidance” of the Department of Education’s Office of Civil Rights’ “dear colleague” letters is not a legal mandate, but rather cowardly acquiescence, a video, via FIRE’s Greg Lukianoff at Instapundit, of Sen. Lamar Alexander (R-TN) questioning Deputy Education Assistant Secretary Amy McIntosh drives the point home as clearly as possible.
Even McIntosh, despite her dodging and weaving, concedes that Catherine E. Lhamon, Assistant Secretary for Civil Rights and head of the DoE Office of Civil Rights has gone off the reservation. She has no lawful authority to mandate colleges and universities adhere to her political whims, as reflected in her “guidance,” upon pain of losing federal funds.*
When asked (see 1:37 in the video) who gave Lhamon the authority to impose her personal will upon the nation’s colleges and universities, she responded, “with gratitude, you did when I was confirmed.”
The United States of America did not confer upon a person named Lhamon the authority to recreate Title IX in her image, to impose threat of the loss of public monies upon failure to adhere to her vision, to force a fundamental and systemic change that created a wholly new authority to rid the nation’s higher educational system of anything that might adversely affect the feelings of “marginalized” students, ascertain and punish students who are alleged to have engaged in conduct that caused such unpleasantness.
While much of the discussion, and dispute, addresses the fringes of this system of adjudication, ranging from what conduct is subject to collegiate condemnation to how it’s determined, to what’s to be done about it, precious little thought has gone into the government’s authority to do any of this in the first place.
There is none. Lhamon took it upon herself to send out a letter to her “dear colleagues,” and the nation’s higher education system chose to read her letter and say, “well, okay then.” The “dear colleague” letters are not, and never were, of binding authority upon anyone. They are not the law, and anyone asserting that this creature devouring innocent students on campus is mandated by law is wrong. Title IX does not create authority for colleges to adjudicate rape and sexual assault on campus.
But, perhaps the misimpression reflects that colleges are unaware of Lhamon’s gross overreach, or their active choice not to challenge her authority and test whether she can pull the plug on federal money. After all, why should a college risk the loss of its lifeblood for the sake of protecting a few guys, particularly when the colleges pretty much agree with Lhamon’s progressive ideals?
The answer is partially revealed by Columbia University’s Memorandum of Law in Support of its motion to dismiss the complaint of Paul Nunsgesser in the Mattress Girl litigation.
In the situation of student-on-student harassment, a mere finding of sexual harassment is not enough. In order to be actionable under Title IX, student-on-student sexual harassment must also be “so severe, pervasive, and objectively offensive” that it is “serious enough to have the systemic effect of denying the victim equal access to” education. Davis, 526 U.S. at 652. Thus, the “effects of the harassment [must] touch the whole or entirety of an educational program or activity.” Hawkins v. Sarasota Cnty. Sch. Bd., 322 F.3d 1279, 1289 (11th Cir. 2003)…..
Nowhere does the Complaint allege that Plaintiff was prevented from attending classes at Columbia or otherwise accessing University resources. He does not allege that his grades suffered, that he was systematically excluded from classroom participation or attendance, or that he had to withdraw from Columbia. See id. at 1289 (no Title IX liability because plaintiffs did not suffer “a decline in grades” or “any change in . . . classroom participation”) Plaintiff’s allegations do not in any way approach the offensiveness, pervasiveness, or severity of cases where Title IX or similar violations have been found.
When Columbia University had liability, and with it the potential for a significant damage award, on the line, it miraculously came to the realization that Title IX doesn’t require the school to stroke every upset tummy, to provide every student with a safe space where she can indulge her desire for an altered state of consciousness and still have sex, with post-hoc options should it not prove as pleasing as she hoped.
But does Catherine Lhamon know this? It would be insulting to suggest that she’s so clueless as to be unaware that she has no lawful authority to impose her will upon the entirety of higher education. It would be offensive to suggest that she’s unaware of the caselaw suggesting that there is no potential Title IX implications unless and until the conduct becomes so systematic that it excludes a student from “participation or attendance” based upon gender.
So Hanlon’s Razor doesn’t absolve Lhamon of responsibility for her imposition of her personal feminist Utopian vision upon higher education in America. But then, it similarly doesn’t absolve each and every college and university that has taken the easy route of accepting her unilateral fiat as Feelings Czar without question or challenge, and used it to the detriment of male students whose lives have been ruined.
Regardless of whether one embraces the policy choice embodied in Lhamon’s “dear colleague” letters or not, there is no doubt but that it was imposed without lawful authority and adopted by schools who chose to sacrifice one segment of their student population to appease another segment. This is not the law. This is not what Title IX mandates. And they know it, even if you don’t.
* The original “dear colleague” letter, dated April 4, 2011, was issued by Lhamon’s predecessor, Russlynn Ali. H/T JW (whose herp/derp comments will be happily posted when he starts leaving a real email like all other commenters, even though I continue to enable him by noting his points because my concern for accuracy is more important.)