“[W]e must labour to make society understand that without academic freedom it will lose something it needs far more than it realizes: the free pursuit of truth and knowledge, as contrasted with their pursuit only within approved patterns, and criticism of society according to reason rather than according to the policies of the government of the day.”, Sirluck (1974)

This note deals with a sensitive and emotionally-charged topic—sexual assault on college campuses—and we feel that the substance of the note is at risk of being consumed by the emotions surrounding that topic. This article is meant to address is political control of higher education through the use of federal funding guidelines.

What is Title IX?

Title IX is one portion of the Education Amendments of 1972 to the Civil Rights Act of 1964. The primary clause in the law states that:

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

Enforcement of Title IX is handled by the Office of Civil Rights (“OCR”) within the Department of Education. Punishments for violation can include on-campus monitoring by agents of the federal government and even a withdrawal of all federal funds being received by the school (including student loans to enrolled students).

The law’s purview was expanded to include sexual harassment by faculty as a result of the 1979 Supreme Court case Alexander v Yale. The court found that sexual harassment was a form of discrimination and constituted a violation of Title IX. Over the course of the next twenty years, the law’s reach has been expanded several times and by 2000 included cases of student-to-student harassment.

The law passed with no opposition in an environment where achieving gender-equality was given priority over all other concerns. As a result, no thought was given by Congress as to the implications of the law beyond its proximate intent. Indeed, since that time, integration has been more than fully achieved—eliminating the need for the law based on the original intent of Congress.

In 1972, at the time of passage, 44% of bachelor’s degrees were conferred upon women; by 2009 (most recent data available) that number had reached 57.4%. As pointed out by Epstein (2003), the real social challenge is to explain the under-representation of men on college campuses.

The Human Capital Bubble And The Educational-Industrial Complex

To summarize this effect, investment in human capital is sensitive to real interest rates and rate of return expectations in the same manner as investment in capital goods. By artificially depressing real interest rates on student loans through guarantees and subsidies, the U.S. government created a boom in human capital investment.

Evidence of the bubble can be seen in Charts 1 and 2. The monotonic increase in loans outstanding (despite declines in all other forms of consumer credit) and the steady march upwards in inflation-adjusted borrowing bear the hallmarks of a single-minded bureaucracy.

In any investment bubble one can expect certain industries to grow rapidly and become very dependent on the continuation of the bubble; this case is no different. Not surprisingly, the industry most closely connected with a bubble fueled by student loans is higher education.

Business has been good in higher education over the past few decades. As we can see in Chart 3 below, teaching staff at post-secondary institutions in the U.S. nearly doubled between 1987 and 2011 (most recent data available). A large expansion of staff would be expected given that the number of students enrolled grew by 8 million during that period.

However, as we can see in Chart 4, even in the face of rapidly rising enrollments, the student faculty ratio has fallen significantly over the same period. As we said, business has been good.

Tables A and B below show in very stark terms just how important funds federally-provided funds (directly or indirectly) are for the higher education industry in the U.S. Nearly 30% of gross revenues for the higher education sector are the result of federal funding of one sort or another. Indeed, Table B shows us that the problem is even more acute at top institutions, which have become dependent to an existential level on federal grants to fund their research programs.

The simple fact is that, for many post-secondary institutions in the U.S., the threat of being cut off from federal funds is the threat of closure. Just as perversely, the institutions have a strong incentive to expand the power and scope of government in an effort to secure and enlarge their single-largest source of funds. Thus is born the educational-industrial complex.

Chart 5 below gives us a view of the growth in Federal post-secondary spending since the 1960s in inflation-adjusted terms. As we can see, funding exploded upwards in the early-2000s; primarily fueled by student loans and school grants (i.e. outright handouts).

The situation has developed such that when the federal government says “jump,” the higher education sector had better say “how high” if it knows what’s best.

This is not the first time a nation’s higher education system has been brought under the control of government through the sedating drug of subsidies. The quote below is drawn from an article written in 1974 by the then-President of the University of Manitoba, Earnest Sirluck. Sirluck’s goal in writing the article was to warn his colleagues against the dangers presented to academic independence as a result of the rise in government funding of higher education.

…a growing disposition on the part of governments to ‘co-ordinate’ universities fully with other educational institutions… which means to make them simply the upper level of a fully integrated educational system thought to exist solely to serve society’s needs as these are seen and interpreted by the government of the day. An ominous factor in this connection is that there is no longer an important deterrent in the form of a strong private sector. Many of what were originally private institutions survive and retain some of the trappings of independence, but not enough of the reality, having accepted and become dependent upon government financing…, Sirluck (1974)

Sirluck’s main point is that by accepting government funds institutions of higher education become hostage to the shifting winds of politics and, by extension, the machinations of the politicians of the day.

Indeed, the growing federal infringement on higher education in the United States is only now becoming apparent to post-secondary administrators. In response to the Obama Administration’s proposal to impose a federal ratings system on higher education, Jane Wellman, Executive Director, National Association of System Heads said this:

The proposal would be a huge change in higher education, with the federal government asserting itself as the definer of institutional goals and policy, and doing it through need-based financial aid. The federal government has never been in higher education policy before – it has just administered financial aid…



We believe Sirluck’s warning bears special significance in the context of the present-day U.S. The multiple shifts in control of Congress that have taken place since the mid-1990s have marked one of the most dynamic periods in American politics since the first decades of the 20th century. The last twenty years have been a political football match with two teams of severe partisans vying for power.

In any environment where there is a struggle for power, those who seek it will grab any weapon at hand with which to fight for control. It is in environments such as these that principle frequently falls victim to expediency. It is here where the story of Title IX meets the “War on Women” and the good-intentions of Progressive government meet the cruel realities of partisan politics.

The 2012 Election And The “War On Women”

Coming out of the “shellacking” of the 2010 election, President Obama and the Democratic Party needed a strategy to survive in 2012. A key factor driving the disappointing results for Democrats in 2010 was low turnout among single women. Single women are a fast-growing identity group that has become a core base of the Democratic Party’s coalition of identity-based special interest groups.

As we can see in Chart 6 below, in the decade leading up to the 2012 election the number of single women eligible voters had grown by 10 million – reaching near-parity with both married men and married women. In Chart 7 we see voting rates for single women are the most volatile among the married-unmarried demographic groups.

Indeed, although single-men men have a lower rate the volatility of their rate is below that of single women. Democrats needed to ensure single women would show up on Election Day 2012 in large numbers or the election would be lost.

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By 2011, the heady optimism of Obama’s 2008 campaign was long gone — so the President and his party turned to a divide-and-conquer strategy. Taking a page from the Newt Gingrich playbook, the President’s re-election strategy was to smash the electorate into a million pieces and then try to pick up at least 51% of them by Election Day.

The tactic chosen by the Democrats to maximize votes was the paranoid and exclusionary “War on Women” campaign theme. The term itself was a product of legislative “Abortion Theater” in the aftermath of the so-called Conservative-revival of 2010.

In early-2011 the new Republican majority in the House of Representatives passed an anti-abortion bill pretending it could become law. Playing their part in the dance for the cameras, Democratic representatives gave breathless speeches pretending the bill might actually become law. During the debate over the law, the term “War on Women” was quietly born.

The term went mainstream in May 2011 upon the appointment of Debbie Wasserman-Shultz (“DWS”) as head of the Democratic National Committee. The “War on Women” talking point was a favorite of DWS and the term was soon picked up by the mainstream media. According to Slate, between January 1, 2012 and April 12, 2012 the term was used 24 times in the New York times and 26 in the Washington Post.

The “War on Women” propaganda theme worked well in 2012 because it encapsulated visceral feelings of identity with an adversary-based narrative simple enough for the media and the general public to intellectually digest.

Enter Title IX As A Partisan Weapon

Once the Democrats had settled on gender-antagonization as a campaign tactic, they needed catalysts for action that would motivate young women to vote, donate, and volunteer for Democrats. To be effective, a political catalyst must be emotionally-charged and strongly divisive at a clearly-delineated point on the political spectrum.

What better a topic than sex?

In 2011, the ongoing political-kabuki theater taking place around Obamacare provided ample opportunity for the campaign-issue generation machine do its work. The “free” birth-control debate is a prime example of the attempts to artificially generate political catalysts to attract young women to the polls.

Another topic chosen to act as a key catalyst was the emotionally charged issue of sexual assault. This is where Title IX enters the picture and the story gets very ugly.

As discussed above, Title IX was originally enacted to end gender-based discrimination in academia. It was later expanded to include sexual harassment and assault, in the case of employees of the institutions receiving funds from the federal government.

It was not until the OCR’s Dear Colleague letter of April 4, 2011 that Title IX was applied to sexual assault by students; thus making schools directly accountable for the sexual behavior of students.

The date of the letter’s publication plays an important role in connecting the expansion by fiat of Title IX to the “War on Women” campaign theme. April 4, 2011 also happened to be the day President Obama launched his re-election campaign and Vice President Biden gave a major speech on sexual assault on college campuses at the University of New Hampshire.

Indeed, according to Henricks (2013), the letter’s drafting appears to have been rushed because it contains numerous logical and typographical errors. Another suspicious (and unusual) action taken by OCR with regards to this letter was that the office provided no notice-and-comment period .

Indeed, Prof. Cynthia Bowman, a law professor at Cornell, has argued that the omission of notice-and-comment means the letter has no legal authority. The omission of a notice-and-comment period was highly irregular and, in conjunction with other evidence, very suspicious.

In short, the changes to Title IX enforcement were designed to create a moral panic in one of the richest sources of eligible young women voters available for political exploitation – college campuses. As we can see in Table C below, the tactic appears to have worked as Obama’s net change in performance among young women between 2008 and 2012 was 6-percentage points better than for young men.

Given that unmarried women (of all ages) made up nearly a quarter of voters in the 2012 election, strength in this demographic played a major role in Obama’s re-election. Indeed, Romney beat the president by 7-percentage points among married women.

However, Obama won single women by a margin of 36 percentage points and this group had grown significantly relative to married women between 2008 and 2012.

The 2011 Dear Colleague Letter

For a detailed overview of the OCR’s 2011 Dear Colleague letter, we encourage readers to see the cited paper by Dr. Stephen Henrick. Henrick’s critical review of the letter assesses the biases built into the OCR’s directives and the risk-averse responses by the schools to the new directives.

His assessment is that the rule changes are detrimental to due process and that the schools are not equipped to adjudicate cases of such magnitude both because of complexity and conflict of interest. We draw heavily from his analysis in this section.

As pointed out by Henricks, the letter “effectuates a presumption that all accused students are guilty and institutes four changes to increase the conviction rate.” The four changes are:

1) Lowering the burden of proof to “preponderance of evidence” for on-campus tribunals relating to sexual assault.

2) Establishing suspect evidentiary rules that do not require disclosure of exculpatory evidence or mutual discovery.

3) Requiring schools to inform the complainants of their legal rights, but not the accused

4) Giving the school’s Title IX coordinator power to revise any sanctions issued by a disciplinary proceeding.

Proponents of the policy argue the letter seeks to make the process more “equitable,” but the letter explicitly creates superior rights for the accuser.

First, only the complainant can ask the Title IX coordinator for a review. Second, only the complainant must be informed of their rights. Third, indifference to a claim of sexual assault is automatically an actionable violation. However, deliberate indifference to the innocence of the accused is not actionable.

Furthermore, both parties must be given the right to appeal all rulings, enshrining double jeopardy in the regulations. Even worse, the Title IX coordinator is given power to determine if “the complainant is entitled to a remedy under Title IX that was not available through the disciplinary committee.”

In other words, the committee is merely a puppet for the Title IX coordinator and can be overruled whenever the outcome of the proceedings is not the one desired.

Since publishing the letter, OCR has secretly been working to entice schools to re-investigate complaints. In exchange for dropping Title IX investigations, schools have been signing confidential agreements that include promises to re-investigate the complaints at issue.

No notice is given to the accused until the second investigation has already begun. Clearly, under these circumstances conviction is almost guaranteed as no school would defy the implied order to convict. Henrick offers in summary that,

The net effect of the administrative enforcement scheme is that schools have an incentive to convict anyone who is charged with sexual assault or rape as a matter of risk aversion for the institution. …Because OCR primarily cares about the complainant’s rights, as evidenced by its guidance and enforcement opinion letters, conviction carries a much lower risk of administrative enforcement than acquittal. Henrick (2013)

The natural response to the discussion above is: What would you replace the current system with, smart guy? Here again Henrick offers an insightful overview, which we agree with. Campus disciplinary committees simply have too many conflicts to handle such important and judicially-complex cases. As said by Henrick:

Unfortunately, institutions of higher learning are hindered by several powerful and problematic incentives to falsely convict accused students in these types of cases. Removing claims of sexual violence from college campuses to civil and criminal judicial systems is the only viable way to fix the problem and ensure that sexual assault adjudication is equitable and impartial for all affected parties. Henrick (2013)

Finally, Henrick offers a poignant response to those who say that the policies should be biased in order to counter-balance some historical or institutional wrong.

Justifying institutionalized unfairness to a given defendant in the exercise of power because of a perceived need to reform a broader social problem is contrary to the very idea of civilized justice. [W]hile recognizing that sexual violence is reprehensible, convicting the innocent to atone for society’s sins or to bring about change remains an unjustifiable use of authority and a dangerous judicial precedent. Henrick (2013)

Rolling Stone Magazine And Title IX

A recent example of Title IX’s ability to wreak havoc is the incident involving a Rolling Stone article detailing an alleged gang rape at the University of Virginia (UVA). As it turns out, the story in the article was a complete fabrication and the article’s author, Sabrina Erdely, was (appropriately) condemned for a gross breach of journalistic ethics.

The article created a stir in the U.S. and prompted an extreme reaction by the UVA administration in a state of panic. Among other actions, the school immediately suspended all fraternities and in doing so effectively labeled every fraternity member in the school as a rapist. At first, it may seem that the school’s panic-stricken reaction to an article in a music magazine was overdone.

We disagree with that viewpoint. Indeed, in light of OCR’s 2011 Dear Colleague letter, the school administration’s actions were completely rational. As stated in the letter, “a single case of sexual assault or rape could be sufficient to raise a jury question about whether a hostile environment exists.”

The salacious and grotesque description of a (completely fabricated) gang rape immediately brought the school under the scrutiny of OCR. Given the Sword of Damocles hanging over the school, the administration’s unthinking and hyperbolic reaction seems quite prudent.

Perhaps the most disturbing aspect of the case can be observed in the letter from UVA President Teresa Sullivan to the school’s students and faculty in response to the article (before it had been discredited).

We can demand that incidents like those described in Rolling Stone never happen and that if they do, the responsible are held accountable to the law. This will require institutional change, cultural change, and legislative change , and it will not be easy. We are making those changes. [Emphasis ours]

Here we see the efforts of the totalitarians bearing fruit. The only legislative changes applicable in this case would be an infringement of due process. As a public university, UVA is held to some of the standards of due process. With absolutely no evidence of an assault available, the school was unable to operate its Title IX kangaroo court to run the accused out of town.

The simple fact that a lie in a music magazine resulted in such an extreme reaction is evidence enough to unmask the malignancy of Title IX regulations in general and the Obama Administration’s political exploitation of the law more specifically.

Conclusion

Taken alone, the changes to Title IX enforcement instituted by the Office of Civil Rights would be outright bad policy. However, when combined with the immediate political motive driving the changes the policy becomes something much more insidious – the naked coercion of higher education for political purposes.

Prior to 2011, it was understood to be acceptable to coerce the schools in pursuit of utilitarian ideals. After Obama’s re-election, the precedent has now been set that it is acceptable to coerce the higher education system for purely political ends.

Readers can be sure that, now that a Democrat has used the tactic, the Republicans will be watching for their opportunity; then the act will have become commonplace and will be used repeatedly. Yet again, we see that the President’s undermining of the rule of law for his own convenience will do far more damage to liberty in the long-run than his ineffectual leadership in the present.

Additionally, the perversion of Title IX has serious economic consequences. The US’s vibrant and extensive higher education system has been a major driver of its culture of innovation and superior TFP contribution to growth. By subsuming the centers of free-thought in the United States to the dirty game of partisan politics, the United States has diminished its long-term growth prospects and taken another big step towards totalitarianism.

We close with a final warning from Sirluck:

If we believe, as I do, that academic freedom is the soul of the university, we must find additional means to support it, for as governments exercise increasing control over universities they will inevitably come under increasing pressure to control what is said and taught within universities. Sirluck (1974)

References

Sirluck, Ernest, “Causes of Tightening Government Control of Universities”, University of Toronto Convocation (1974)

Epstein, Richard, “Just Do It!: Title IX as a Threat to University Autonomy”, University of Chicago Law School Journal (2003)

Henrick, Stephen, “A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses”, Northern Kentucky Law Review, 2013

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