Last November we noted here that the Trump Administration had revised an Obama Department of Education “Guidance” relating to adjudications of sexual misconduct allegations in colleges and universities that had effectively condemned accused young men to conviction.
Under the Obama rules, the accused was not given access to all of the evidence gathered in the investigation. He also did not have the right to question the accuser or to have an advocate or witnesses. And in many cases, he did not even have the right to be informed as to what the charges were. By way of explanation, an Obama official told the Wall Street Journal, “If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience.”
The process also involved the “single investigator” model which allowed schools to have a single person to be investigator, judge and jury.
In sum, the Obama rules shifted the burden of proof to the accused, a fundamental departure from the principle of “innocent until proven guilty.” It seemed to us at the time that the Obama team was more interested in implementing a social statement about condemning sexual abuse on campus rather than providing a mechanism for the fair investigation of whether the allegations had occurred. The new Trump rules dramatically changed all of that for the better.
The Trump Department of Education has now revised another, even more bizarre Obama Guidance, this one designed to apply to disciplinary actions in lower public school and ensure racial equity.
In 2014, the Obama Administration issued a Guidance that essentially required that students be disciplined, suspended and or reported to police authorities according to race. That is, the Department of Justice would investigate as presumptive discrimination instances of “racial disparities in student discipline” in some cases even when the disparity merely reflects that minority students “are engaging” in specified misconduct “at a higher rate than students of other races.”
Put another way, the number of minority students that could be disciplined, suspended or reported could not exceed their percentage presence in the overall student population.
Predictably, school administrators were loathe to get into this morass and routinely did nothing and routinely ignored even serious wrongdoing.
Thankfully, that sort of thing is now history.