Last year, Stuart Taylor and I examined the peculiar response of congressional Republicans to campus due process. Despite being elected in 2010 on a mandate against executive overreach, most congressional Republicans have remained silent or even supportive (Rubio, Ayotte, Grassley) as the administration reinterpreted Title IX to eviscerate campus due process.
The fallout from North Carolina’s HB2 has only further exposed the inconsistency of the Republican—and conservative—response to the administration’s Title IX agenda. In response to a Charlotte ordinance, HB2 prohibited all North Carolina cities from enacting anti-discrimination laws based on sexual orientation, and required transgender North Carolinians to use bathrooms, in public buildings, corresponding to their biological sex.
The first sign of this inconsistency came in a perceptive piece by Michelle Goldberg, examining the efforts of the socially conservative group Alliance Defending Freedom to defend HB2. The organization produced a video featuring a woman who described herself as a sexual assault survivor, saying she’d be traumatized by having to share a bathroom with a biological male. (HB2, of course, requires transgender men—people who look like men—to use the women’s restroom, which also would presumably have a traumatizing effect on the ADF spokesperson.) ADF’s press release added, “Advocacy groups report that, in the United States, nearly 1 in 5 women and nearly 1 in 8 high school girls have been sexually assaulted.* For many of them, the mere presence of a biological man in a women’s restroom is a trigger that causes severe emotional and mental harm—regardless of that man’s intentions.”
George Will—who among conservative commentators has distinguished himself in resisting the Obama administration’s war on campus due process—accurately deemed the figure touted by ADF as “discredited social science.” (Even Obama, as far as I know, has never claimed that 12 percent of high school girls are sexually assaulted.) ADF, for its part, has looked to preempt such criticisms through the asterisk quoted above, noting “These statistics are based on studies frequently cited in mainstream media. Alliance Defending Freedom cannot vouch for the validity of the studies.”
Does ADF normally utilize statistics whose validity it can’t corroborate?
Given that the organization has spent the last few years running around the Caribbean Basin seeking to uphold sodomy laws, it’s rather hard to take seriously ADF’s current crusade for privacy. But it’s not merely ADF that’s guilty of hypocrisy here. As Goldberg pointed out, for liberals, the best response to ADF’s attacks would be to stress the importance of civil liberties (in this case, for transgender people), “rather than engaging in a victimology arms race . . . Civil libertarians know that we don’t punish people as a group for the actions of individuals. They know that in a diverse, fractious, free country, sometimes other people are going to exercise their rights in a way that upsets or even scares you. And they know that protecting civil liberties sometimes means forgoing other kinds of protection. It would be easier for people on the left to make that argument now, though, if they hadn’t spent the past few years arguing the opposite.”
In this case, it seems, the abuse of statistics and appeals to emotionalism over due process used by groups such as Know Your IX against the due process rights of accused students has been employed by ADF—for an equally illiberal end.
Last week, the federal government and North Carolina sued each other in a battle over the constitutionality of HB2. (I don’t think the state’s odds are very good.) A few days later, OCR came out with “guidance” that public schools should allow transgender students to use the bathroom of the gender with which they identify.
This approach seems correct as a matter of policy and basic human decency. But as with much of the Obama administration’s OCR record, last week’s “guidance” seems procedurally suspect. OCR released its 2011 “Dear Colleague” letter on the day the President announced his re-election, without going through a notice and comment period. For reasons that Hans Bader and Scott Greenfield have pointed out, OCR’s “guidance” seems like yet another example of the office’s overreach.
(If it’s not already clear: I oppose HB2, as well as any public school policies that don’t treat transgender students equally, including allowing them to use the bathroom of the gender with which they identify.)
So: two “Dear Colleague” letters, one targeting the rights of accused students, the other safeguarding the rights of transgender students. A principled opponent of regulatory overreach would criticize both. But if only one policy were going to be targeted, it might seem obvious that it would be the first, since the 2011 Dear Colleague letter so clearly harmed people, while the harm from the 2016 version is (at best) speculative.
Prominent Republican politicians, however, have taken the opposite approach. There was Texas governor Greg Abbott:
And yet Abbott seems to have had no trouble with Obama acting as King, dictating disciplinary policies for Texas universities.
Perhaps the most remarkable response came from Nebraska senator Ben Sasse. He tweeted, “Has our Constitutional Law Professor-President ever read the 9th and 10th Amendments?” This is the same Ben Sasse who was president of Midland University when the 2011 “Dear Colleague” letter was issued; he remained in that capacity until his election to the Senate in 2014. There’s no indication from Midland’s sexual assault policy that Sasse had any 10th amendment concerns with a policy that targeted the civil liberties of his students.
The best-case scenario: GOP officeholders, energized by the current bathroom fight, will start looking skeptically at OCR’s earlier action. The likelier outcome, as Mark Bennett has noted: “More voters care about penises in the ladies’ room than about college boys being presumed guilty of rape.” I suspect the GOP silence regarding the administration’s assault on college students’ civil liberties will continue.