September 28, 2015

SIMPLE JUSTICE: The Department Of Education’s Office Of Civil Rights Gone Rogue.

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.

You know, Administrative Law is a nice field. But in this fundamentally-transformed America, there’s a lot more administration than there is law.

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