Ed. Dept.’s Demands in Title IX Investigations Violate the Constitution

To the Editor:

A recent AAUP report was right to criticize the Education Department for trampling on faculty members’ rights to academic freedom, due process, and shared governance, in its sexual-harassment investigations (“AAUP Slams Education Department and Colleges Over Title IX Enforcement,The Chronicle, March 24).

The Education Department ordered Tufts University to restrict even speech “not directed” at the complainant as sexual harassment. That flouted court rulings dismissing harassment lawsuits over such speech on First Amendment grounds, such as the Ninth Circuit Court of Appeals’ decision in Rodriguez v. Maricopa Community College District (2010).

The Education Department has also pressured colleges not to allow cross-examination of complainants, even though the Supreme Court has lauded cross-examination as the “greatest legal engine ever invented for the discovery of truth.” And it ordered colleges to discard the traditional clear-and-convincing evidence standard, even though the Yale Law Journal noted in 1987 that courts and colleges had recognized it as an “appropriate standard of proof.”

As a former Education Department lawyer, I believe its demands violate both the Administrative Procedure Act and the Constitution.

Hans Bader
Arlington, Va.

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