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Friday, May 02, 2014

The Urge to Over-Centralize & the Obama Administration's Campaign against Sexual Assault

I tend to think that politicians and bureaucrats suffer from an irresistible urge to over-centralize, an itch that undermines the very national initiatives that the centralizers seek to advance. Often the best approach is partial nationalization: Set a broad policy goal but allow subnational divergence with respect to implementation where national consensus is missing and and empirical evidence is uncertain. Yet this mixed approach seems like an unstable equilibrium: Salutary national measures fall victim to national officials' apparently irresistible itch to micromanage the details.

Take, for instance, the Obama Administration's campaign against sexual assault. The national government is entirely within its appropriate role in insuring that subnational jurisdictions, public and private – colleges and universities, cities, counties, and states – take sexual assault seriously. Vice President Biden’s Public Service Announcement calling for zero tolerance of sexual assault is a good example of such sensible (actually, moving) centralization: Use the national bully pulpit to exhort citizens to work harder to achieve values we all share. The report of the Obama Administration’s Task Force Task Force to Protect Students from Sexual Assault contained many similar excellent proposals -- for instance, promoting findings from the Center for Disease Control on effective methods for preventing sexual assault and rape.

Unfortunately, the Task Force went beyond this sensible role of enforcing a national and data-backed consensus and instead dictated procedural details about which we appropriately and passionately disagree. The report, for instance, embraced the Department of Education’s 2011 “Dear Colleague” letter that, in university disciplinary hearings adjudicating allegations of sexual assault, the standard of proof should be “preponderance of the evidence” rather than “clear and convincing evidence.” The report also endorsed the DOE’s guidance document taking the position that “the parties should not be allowed to personally cross-examine each other” (Task Force Report at page 19).

Why did the feds take a stand on such contentious matters? As I noted in an earlier post, the problem of striking the balance between due process for the accused and equal protection for victims is excruciatingly difficult. Nothing in the report provides any response to intelligent critics like Hans Bader, who point out that cross-examination might constitute a basic protection against erroneous accusations of a serious crime. Not having undergone any notice-and-comment rule-making process, the guidance document and "Dear Colleague" letter likewise do not discuss opposing arguments.

The result is that an important national initiative has been marred by needless strife provoked by over-centralization. Critics can rightly complain that, under the guise of setting forth "best practices," the feds have used the commanding heights of the executive branch to cram untested and controversial procedures down universities' throats.

Why cannot federalism prevail against this unfortunately centralizing dynamic?

My hypothesis is that "federalism"-- meaning, in this context, optimal decentralization of policy uncertainty -- is doomed by the "Never Let A Crisis Go to Waste" syndrome. Major national policy initiatives are rare events, often provoked by exogenous shocks (a war, a heinous crime, a scandal, a recession) the repetition of which is uncertain. With the policy train leaving the station, every advocacy group wants to crowd on, tying their favored reforms to whatever package is being promoted by the White House. Controversial and appropriately debatable policies are thereby smuggled into packages that are otherwise mostly backed by data and consensus.

The result is that the latter get bogged down by the controversy and cynicism inspired by the former. The Obama Administration's campaign against sexual abuse ought to be a moment for a bipartisan coming-together. The inclusion of hotly contested and unproven hearing procedures, however, has inspired heated resistance from the AAUP and others.

The moral of the story is that national policymakers ought to resist temptation to exploit a crisis with over-centralization by exercising self-control. They should presumptively enforce against outlying jurisdictions only those policies for which there is both a national consensus and decent supporting data. For policy initiatives that inspire justifiable controversy from substantial segments of the public, national leaders ought to use procedures that promote deliberation, air conflicting evidence, and give each side a chance to have their say, such as the APA's Notice-and-Comment rule-making process.

The empirical reality of politics, however, makes such self-control unlikely. Even if we are all better off in the long run by allowing policy diversity when national values and empirical evidence are uncertain, advocacy group naturally insist that their pet projects be included in omnibus policy packages, and presidents are naturally reluctant to alienate their base through self-restraint for the sake of amorphous, long-term values like policy experimentation and reduction of political alienation.

One might, therefore, predict that federalism can never really be protected effectively through either the political or administrative process from the itch to over-centralize. Such a conclusion is premature. The report of the White House Task Force to Protect Students From Sexual Assault, however, provides one more data point supporting this (to me) gloomy prediction.

Posted by Rick Hills on May 2, 2014 at 10:50 AM | Permalink


I completely agree with all of this. The optimal situation is one that allows a full panoply of school policies, with varying DP rights and procedures.

But I'm someone who now works in the policy area, and will be working on this issue in particular. We live in a second-best world, and centralization is a foregone conclusion. Repeal Title IX? Pass a law to override bad ED decisions? Pass a law to clarify what it means to interfere with educational opportunity? Fat chance on all fronts.

As it stands, (more or less) every action or inaction of universities, no matter how small, is now swept under Title IX. Unfortunately for those due process advocates like myself, we don't have the option of "more federalism" or "more localism."

Our only option is on the merits. So, PRESUMING this is all a national issue, presuming there are no constitutional backstops to ED policy here, and presuming Congressional mood is to pass a law further entrenching this sorry state of affairs---- what minimal things can be done?

Statutory due process rights? Mandatory referral to law enforcement (with Title IX safe harbor of one sort or another)? Something else?

Posted by: AndyK | May 5, 2014 12:12:06 PM

This is entirely non sequitur, but I'm really worried about the narrative on this subject as well:

It's now a presumptive Title IX violation (read the Q&A) to have a policy of mandatory referral, because it interferes with the educational opportunities of victims who want to remain anonymous? And data disclosure to the accused is also not kosher? And all of this isn't FOIA-able / FERPA-able?

And the narrative is this: disclosure or referral tramples the rights of victims. Well, I would answer, they aren't proved as such--- we're trying to find that out. And the reply (which is scary) is that, of course they are victims, you rape apologist!

To my mind, the goal is a system that is fair to accuser and accused. But we're past "exploit a crisis" and into new territory entirely.

Posted by: AndyK | May 5, 2014 12:18:48 PM

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