Educational organizations urge Biden to get more woke about education, but many of their recommendations aren’t great

This article at Inside Higher Ed (click on screenshot below) describes the contents of a four-page letter sent to Joe Biden and Kamala Harris by 40 educational associations asking for the Prez and Vice-Prez to undo many of the changes to U.S. colleges and universities enacted by the Trump administration. In general, the request is a mixed bag, for about half the requested changes make colleges and universities not only more woke, but appear to create more unfairness.

Click on the screenshot to read.

Here’s a list of the areas singled out by the signatories as detailed by IHE, “demands” that are substantiated in the letter. I’ve put the IHE characterizations in indents, while my own comments are flush left.

1.)  Title IX and sexual assault hearings:

Associations representing the nation’s colleges and universities are urging the incoming Biden administration to quickly undo much of what the Trump administration did on higher education policy, starting with changing a rule that, they worry, will make it harder for victims of sexual assault and harassment to come forward.

In particular, the administration should undo the new requirement under Title IX of the Education Amendments of 1972 that requires cross-examinations in a live hearing in cases involving sexual assault on campuses. That “could have a chilling effect on the willingness of survivors to come forward and raises serious concerns about retraumatization,” wrote Ted Mitchell, president of the American Council on Education, in a letter signed by 44 other higher education groups, among them the American Association of Community Colleges, the American Association of State Colleges and Universities, the Association of American Colleges and Universities, the Association of American Universities, and the Council for Christian Colleges & Universities.

In general, this is not good. The changes in how sexual assault hearings are handled by campuses, made by the DeVos regulations, were an improvement under the earlier Obama-era regulations.  Under Obama, the Title IX regulations created a mess, as I reported here and here. Among the Obama-era procedures in college hearings on sexual assault were the inability of the accused to cross-examine the accuser, the inability to have a lawyer with you during your hearing, the requirement that the investigation be completed within 60 days (DeVos’s regulations said that the investigation and hearing should be “prompt”), the fact that the investigator, finder of fact, and judge and jury could be the same person, and that the standard of evidence needed for conviction was the weakest possible. Of the three standards possible, given below, the Obama mandate required the “preponderance of evidence” criterion for conviction (these are my characterizations):

  • Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
  • Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
  • Conviction requires a “preponderance of the evidence” for assault or harassment. This means that it is more likely than not (likelihood > 50%) that the offense occurred.

Readers here didn’t agree with the use of the Obama standard, as a poll showed. In fact, readers thought that accusations of sexual assault should be dealt with by the police and courts rather than by colleges themselves, but if they were taken up by schools, the “preponderance of evidence” standard was the least favored.

Although the Trump administration didn’t do many good things, the DeVos changes were, in my view, fairer to both accused and accuser. They also cut down on the number of largely successful lawsuits brought against colleges by men who felt they were being unjustly accused or tried. “Preponderance of evidence” comes down to a judgment call, and I don’t think that’s fair when someone’s future is hanging in the balance.

If these changes have a “chilling effect on the willingness of survivors to come forward and raise serious concerns about retraumatization,” well, that’s unfortunate but such is also the case with going to the police.  “Retraumatization,” which I take as the cross-examination provision, is necessary for fairness towards accusers, which of course is essential in convicting the justly accused as well, helping ensure that they don’t offend again.

2.) Restoration of DACA.

The groups also applauded President-elect Joe Biden’s plans to reinstate the Deferred Action for Childhood Arrivals program, and urged the incoming administration to drop Education Secretary Betsy DeVos’s position barring DACA and other students who do not qualify for federal student aid from receiving emergency grants under the CARES Act.

I am in favor of these suggested changes; DACA was a good thing.

3.) Investigating a college’s own self-accusatory claims.

Among a long list of other actions they are hoping Biden will take, the groups would like the administration to halt additional requirements for institutions on reporting foreign gifts and to “review and, when appropriate, terminate a number of investigations initiated and being conducted by political appointees in ED that are broadly understood to be politically motivated.” An example, the groups said, is the Education Department’s investigation of Princeton University after its president, in discussing its efforts to deal with inequity, acknowledged the existence of systemic racism in the institution’s history.

Because of my ignorance, I have no opinion on the changes about reporting gifts. As for the investigations of colleges whose officials say that their institution is rife with systemic racism, well, why shouldn’t those claims be investigated?  If there is systemic bias (that is, bias against minorities or women that’s built into an institution), then of course those claims, which constitute violations of the law, should be followed up. If the authorities are just bloviating when they beat their chests in this way, then they shouldn’t be doing it: they need to either put up or shut up. True, the Trump administration’s action is probably punitive, but it also prevents administrators from making unwarranted claims about racism and discrimination in their institution.

4.) Use of race in admissions decisions. 

The groups also urged the incoming administration to restore the Obama administration’s guidance that institutions can consider race in making admissions decisions and to drop the Justice Department’s lawsuit alleging Yale University’s policies discriminate against white and Asian American applicants.

This is a real thicket, for while I’m in favor of affirmative action in admissions, there are legal rules about how it should be done, rules laid out by the Supreme Court in the messy Bakke case but often ignored. In the Harvard case, Harvard prevailed in two courts over accusations that it was discriminating against Asian-American and Asian applicants. But I’m not yet convinced that this was a just decision, since there was strong evidence that the Asians’ “personality scores” had been adjusted downward to make them less desirable in a “holistic” admissions progress. (In fact, I think the lower court admitted this.)  Nevertheless, if you want an ethnically balanced student body—and I think some balance is necessary as a form of reparations to those previously barred from college—you’re going to have to accept that meritocratic considerations have to bow somewhat before ethnicity. In other words, you must have affirmative action.

5.) Enforcement of free-speech regulations in colleges and barring certain kinds of diversity training.

The groups also want the Biden administration to drop DeVos’s rules requiring free inquiry at colleges and barring diversity training.

The government’s free-inquiry provision, which you can read here, is also summarized in an earlier IHE article (first link above):

The Department of Education on Wednesday finalized its new rule requiring among other things that public universities uphold the First Amendment, including freedom of speech and academic freedom. Private colleges and universities are required to follow their own policies on freedom of expression.

Initially proposed in January, the final version of the Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities rule also prohibits institutions from denying faith-based student groups “any of the rights, benefits, or privileges that other student groups enjoy.”

In addition, the rule codifies how educational institutions can show they are exempt from Title IX of the Education Amendments of 1972’s sex discrimination rules because they are religious institutions. Religious groups were already exempt, but regulations have until now not defined what it means to be controlled by a religious organization.

This sounds fine to me. But the letter from the 40 organizations says this (my emphasis):

Repeal the Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities and the portion of regulations related to that order included in ED’s September 23, 2020 final rule, “Direct Grant Programs, StateAdministered Formula Grant Programs . . . .” Colleges and universities are committed to free inquiry and academic freedom. It is improper for federal officials, including those at ED, to insert their own political judgments about what speech should or should not be permitted on campus. In fact, federal law specifically prohibits ED from interfering in academic matters.

Who are they kidding when saying, “Colleges and universities are committed to free inquiry and academic freedom.” That’s bogus, for the Foundation for Individual Rights in Education (FIRE) exists precisely to monitor, report, and rectify violations of free speech in colleges. Very few colleges are like the University of Chicago in its foundational commitment to academic freedom and free speech.  In fact, I’d go further and say that any university, private or public, that gets federal allotments or grant money should be required to abide by the First Amendment on campus. (Many of FIRE’s lower-rated colleges for free speech, like the University of Texas and Louisiana State University, are public colleges.)

As for diversity training, that’s a bit of a muddle, too. It’s often assumed that the government bans forms of diversity training using Critical Race Theory. That raises red flags for me, as whether the training is acceptable depends entirely on how it’s conducted, not on what theory underlies it.  According to IHE, the present rule is like this:

As for whether the order prohibits unconscious or implicit bias training, the new guidance said this training is “prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex and/or national origin, is racist, sexist, oppressive or biased, whether consciously or unconsciously.” Training is allowed if it is “designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people — regardless of their race or sex — may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.”

That sounds inoffensive to me, for the training that’s prohibited is training that is racist: attributing invidious characteristics to entire groups of people (often whites), while the permitted training sounds like just what is needed. The rule certainly doesn’t seem to ban diversity training, as some people think—just a form of bigoted diversity training. Yes, the Trump rule is likely motivated politically by Republicans’ dislike of Black Lives Matter, but what’s important is not the motivation but the effect. I don’t like people being told that they carry implicit or unconscious bias when there’s no evidence that such a thing even exists. And accusing all members of a group of being biased is absolutely counterproductive in facilitating discourse and equality.

6.) Forgiveness of loans. According to IHE:

They further want Biden to restore Obama administration rules making it easier for students defrauded by colleges to cancel their loans and holding for-profit colleges accountable.

I’m not sure exactly what this means, but in general I think students should pay back their college loans when they’ve agreed to do so, but there should also be a system of assessment and forgiveness if this isn’t possible.

Thus, the educational organizations are asking in some ways for colleges to be allowed to get more woke. What I’m most worried about here is the rollback of the DeVos Title IX restrictions, which I consider makes the system fairer—I shouldn’t have to add that I am not condoning sexual harassment or sexual assuault on campus)—and about whether colleges should have some kind of free-speech code required if they take federal money (and state money, as all public colleges do).

I am on the fence about the specific cases of affirmative action noted above, but in general am not opposed to affirmative action used for remediation of past discrimination, though I’m not a big fan of affirmative action employed because a certain amount of diversity is seen as an inherent good.

Will the Biden/Harris administration bow to all or some of these regulations? If they start rolling back Title IX, I’ll be worried. But only time will tell. In the meantime, the removal of Trump is a far greater good than the installation of an administration that may be somewhat woker than the last one!

Weigh in below.

9 Comments

  1. Posted November 21, 2020 at 1:27 pm | Permalink

    I think some balance is necessary as a form of reparations to those previously barred from college …

    If the actual people previously barred are the ones benefiting, then yes, that’s a good thing.

    But benefiting some people just because they’re in the same grouping as other people who were previously discriminated against, that’s a lot more dubious.

    • Benjamin Schwarz
      Posted November 21, 2020 at 11:27 pm | Permalink

      Coel–I agree. And by JC’s logic, Jewish and Asian students should be given preferential treatment.

  2. CCC
    Posted November 21, 2020 at 1:33 pm | Permalink

    Affirmative action doesn’t do any good to help minorities… it just helps a tiny fraction of minorities, generally speaking wealthier people in minorities, to get to better school with almost zero gain for the larger fragment of minority populations. At the end of the day affirmative action is not about justice, but just a tool for white “woke” liberals in college to feel better about themselves. It’s the college version of “identity politics”: more about getting diverse faces in high places so that some white people can do some virtue signaling, without actually solving any real problem whatsoever.

    That’s why affirmative action isn’t liked by minorities themselves, and why Proposition 16 was rejected by voters in California (a state where the majority of people is actually made of minorities!). If you look at the data, affirmative action appears to be most popular among white liberals and it’s seen with indifference or even contempt by minorities. If the people that are supposed to benefit from these kinds of policies don’t see any benefit at all, well that tells you something.

    Do we really want to solve racial disparities in education? Then first of all we should do something about student loans, that’s the big elephant in the room… and we should also make college less expensive (by cutting all these immense, expensive useless and wasteful burocracies that have taken over)… those things alone will create a lot more equal opportunities for disadvantaged people than affirmative action ever created.

    • Dragon
      Posted November 21, 2020 at 2:28 pm | Permalink

      Do you have a citation for that data? I would like to review the data itself.

  3. TomTom
    Posted November 21, 2020 at 1:52 pm | Permalink

    “In fact, I’d go further and say that any university, private or public, that gets federal allotments or grant money should be required to abide by the First Amendment on campus.”
    Exactly. I couldn’t have said it better.

    About diversity trainings… let’s put it that way: public colleges cannot make trainings that teach highly contested political ideologies
    mandatory without, at least, equally presenting the counter cases against them. Either these kinds of trainings get banned altogheter or they comply and accept to teach also criticisms of these ideologies. But that’s exactly the point about CRT: if you challenge it then you’re called a racist, a bigot etc… so these kinds of trainings need to be banned. I don’t see any other solution.

  4. DrBrydon
    Posted November 21, 2020 at 2:23 pm | Permalink

    Good piece in Reason about why it won’t be easy for Biden to roll back the Trump Title IX reforms. If the Free Speech rule if of the official kind, it would be true there as well. As for the Executive Order that affects diversity training, the actual provisions (see Sections 2 & 3) seek to ban the teaching such things as one sex is superior to another or that one race is superior to another. In 1970 is would have been heralded as a triumph. It says a lot that in 2020 it’s viewed as right wing.

  5. Derek Freyberg
    Posted November 21, 2020 at 3:52 pm | Permalink

    The loan forgiveness modification (return to the old rules) is, in my opinion, a good thing.
    A number of for-profit schools have promised training that would, e.g., qualify a student to take the nursing boards – yet the school failed to provide the required patient contact hours. So a student who borrowed money, helped by the school to do so, would find her/himself unqualified and with significant non-cancelable debt. Same for many other subjects. These schools preyed on people looking for a way out of minimum-wage jobs. And a number have gone bust. But the students are still in debt. Obama-era rules provided for students to seek loan forgiveness if they were, in effect, “bait-and-switched”; but DeVos’s Education Department has been denying 95% or more of the claims.
    Better regulation of for-profit schools is a real need.

  6. Jon Gallant
    Posted November 21, 2020 at 8:54 pm | Permalink

    As to affirmative action, it is an open secret in academia that admissions offices and committees often strain to find devious ways around the Bakke decision’s prohibition of racial quotas. Harvard’s “personality score” gimmick is just one example. The dishonesty behind gimmicks of this sort does not exactly command respect. As for the original rules of Title IX star-chambers, the now ubiquitous “anti-racist” struggle-sessions, the “Diversity Statement” loyalty oaths, and the prevalence of cancel culture—well, these all show that the attitudes called “liberal” in the USA today are seriously mislabeled.

  7. Nicolaas Stempels
    Posted November 22, 2020 at 4:44 am | Permalink

    On no 1: There were a few things during the Obama administration that I would classify as ‘a mistake’. I agree with our host that the ‘Dear Colleague’ letter was one of them. As a result Ms De Vos’ changes to title IX were nearly automatically a positive. Possibly the only positive of Ms De Vos’ administration at Education. For crimes as serious as sexual assault and rape, a ‘preponderance of evidence’ will simply not do, especially since there have been some cases where the accusation turned out to be false.
    Most of the other changes demanded are less unreasonable.
    I guess we all agree on no 2, DACA. I would bet that a majority of US-ians do too. In a way, it is what the US is built on.
    3? Yes, investigate by all means, gifts -foreign or other- to Universities should be encouraged, if no strings attached. I’m not really clear who wants what there though.
    In 4 I tend to disagree to a degree with our host. Only in exceptional circumstances I’d agree that affirmative action is a positive. Affirmative action rarely, if ever, achieves what it set out to achieve. I have some outstanding colleagues that are always under the suspicion they were just ‘affirmative action’ beneficiaries. And on the other hand, I have known some that should never have been given their position, obtained by affirmative action.
    5: Obligatory diversity training? Can that possibly achieve anything? I support Free Speech for 99%. The 1% problem is where and when is a threat of violence becoming ‘imminent’?
    Forgiveness of loans (no 6) is also a subject that one may complicate. What about eg. forgiveness of interests on loans? If universities enticed students to get those loans, but their degrees are useless: forgive the loans. That will teach them to offer those useless “……-studies”.

    Please forgive me for the length of this comment, I intended only to comment on the odious ‘preponderance of evidence’, but got carried away.


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