As advocacy groups go, The FIRE, Foundation for Individual Rights in Education, is a good one. Its work on freedom of speech on campus has accomplished a great deal, which is really quite amazing given the flip-flop of academia from free speech to outright censorship. But when it comes to Title IX, it’s given away half the battle.
An advocacy group called the Foundation for Individual Rights in Education has argued for years that the Education Department guidance violates students’ due process rights. By reducing the burden of proof for sexual assault cases, the guidance by definition reduced the amount of certainty needed to issue punishment, said legislative and policy director Joe Cohn. “It is uncontroversial that there are both people who get away with things that they have done and there are innocent people who are getting expelled,” Cohn said. In response to the department’s guidance, campuses are “actively reducing due process protections, which is increasing the margin of error.”
Campus sexual assault adjudications, discussed here ad nauseam, certainly raise monumental due process problems, together with the question of whether the standard of proof, preponderance of the evidence, as dictated by the “Dear Colleague” letter from the Department of Education’s Office of Civil Rights, is grossly inadequate.
While FIRE has pounded on the latter issue, its significance is questionable. Putting adjudication into the hands of dilettantes, and expecting them to properly apply any burden of proof, is something of a fool’s errand. We charge criminal juries with the burden of “beyond a reasonable doubt,” but we know they have little understanding of what it means. Burdens of proof are abstractions, and if someone believes that an accused is guilty, then they’re guilty, no matter what the technical burden might require.
But all of this, while critically important, remains on the fringes of the problem. The core of the problem has already been ceded to the Catherines, McKinnon and Lhamon, with Andrea Dworkin singing the third part of the harmony.
Cohn said “it is perfectly appropriate to repeal” the 2011 guidance “as long as they really do go through the process of trying to view this from both sides” and adopt policies that protect the rights of both the accusers and the accused.
What? Is FIRE’s Joe Cohn saying that it would not be “perfectly appropriate” to rescind (not repeal, as it’s not a law) the “guidance” if it doesn’t “really” adopt policies that “protect both the rights of the accusers and the accused”? So it appears.
Perhaps Cohn is trying to make a statement that comes off more acceptably to those who demand that anyone accused of rape or sexual assault on campus be burned at the stake, under the working definition that both are whatever a victim says they are, so that The FIRE doesn’t seem too conservative and sexist. After all, the group is often called harsh names because its stance, at the moment at least, runs contrary to the progressive flavor of the month.
But there is a question that isn’t even on the table, and Cohn’s contention, beyond evidencing an inexplicable contortion of due process, not only ignores it, but suggests that The FIRE is advocating against it. What is the DoE doing in the criminal law business under Title IX in the first place?
When Congress enacted Title IX of the Education Amendments of 1972, it prohibited discrimination on the basis of sex:
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.
See the part in there about schools adjudicating sexual relations? That’s not because it’s invisible, nor because everybody understood it to be implicit in the word “discrimination.” It’s because of pushing over decades down a slippery slope, step by step, inferential leap by inferential leap, until the notion of discrimination shifted from school actions to peer conduct, from objective detriment to the sensitivity of every purported victim, all combined with the seriousness of the bureaucrat in charge to withhold federal funds if schools didn’t bend to their will.
Colleges were never very good at playing courts, but then, they’re not supposed to be. They’re not courts. The tenured French Lit prof isn’t a judge. The Title IX administrator isn’t a cop (though most cops would be more than happy to cash their healthy paycheck), or a juror, though they find “facts” according to their peculiar rules of reality.
None of this will be solved by tweaking around the edges of a system that was never meant to exist, never constructed to be capable of performing a function that is completely beyond its capabilities and the law. And yet, The FIRE has not only given this problem away, but appears to advocate the extension of law well past its breaking point.
When incoming Freedom Caucus chairman Mark Meadows recommended the rescission of the OCR guidance letter, USA Today turned to The FIRE, and its policy director, Joe Cohn, as the responsible voice against the Lhamon rules. There is no reason to assume that Cohn has gone off the reservation and doesn’t speak for The FIRE when he endorses the concept of campus sexual assault adjudications, and approves of rescission provided it’s fair to the accused.
But if that’s The FIRE’s position, it’s most assuredly not a principled one. Much as I like The FIRE, it’s not their place to give away a law that Congress never authorized, that exists only because Catherine McKinnon pushed it for decades until everyone forgot that this was just her extended theory and not what any law provided. It may be fine with Cohn, but for the hundreds of college students whose lives will be destroyed, it may not sit nearly as well.
It’s not that there isn’t a role for advocacy groups in pursuing their mission, but when did the mission of The FIRE become fighting for feelings and fairness for the “survivors” of the gender wars? As Catherine Lhamon has moved from head of DoJ OCR to chair of the Civil Rights Commission, she can rest comfortably knowing that she won the war, with groups like The FIRE negotiating over the terms of surrender.