Head of the Department of Education’s Civil Rights Office Shows Her Hand

Six months ago I wrote an article about President Biden’s new head of the Department of Education’s Office for Civil Rights—Suzanne Goldberg. In it I drew attention to: 1) Goldberg’s “creative interpretation” of law. 2) Her acceptance of low standards of proof. 3) Her apparent indulgence of student “activists” who harassed a student exonerated of rape charges. On August 9 Goldberg gave additional cause for concern while addressing an online “conversation” sponsored by the It’s On Us organization.

Goldberg’s remarks made her disregard for legality clear. It’s On Us specializes in addressing sexual harassment and assault on college campuses. Colleges that receive federal funding are required to treat these as forms of sexual discrimination under Title IX. Goldberg’s office is responsible for enforcing both these regulations and regulations issued under Title VI. The latter prohibit “discrimination on the basis of race, color or national origin.” Goldberg informed participants in the “conversation” that her office interprets “national origin” to include illegal immigrants. “Discriminating” against students on the grounds that they shouldn’t be in the US will be prohibited. Federal power and money will be used to force colleges to undermine federal immigration law. Such lawlessness is staggering. It turns Title VI into a weapon for pursuing illegal ideological and partisan policies. And it suggests a willingness to similarly manipulate and weaponize Title IX.

Goldberg also revealed the limited value of her commitment to impartial investigations. The problem isn’t that she wants biased assessment of evidence or a “guilty until proven innocent” approach. But she favors “standards” of “misconduct” low enough to construe almost anything as an “offense.”
This was nothing new. Prior to her appointment by Biden, Goldberg was Columbia University’s Vice President for University Life. Her duties included formulating and implementing Columbia’s sexual harassment and assault policies. On her watch, the university’s policies maintained a low standard of “proof” for such offenses. To her credit, she did take steps to assure some due process rights and impartial assessment of evidence. But neither “proof beyond a reasonable doubt” nor “clear and convincing evidence” was needed for accusations to be judged “true.” Goldberg also developed a so-called “affirmative consent standard” that can be almost impossible to observe and that categorizes honest misunderstandings as rape.

Now Goldberg is considering changing Title IX’s definition of “sexual harassment.” During the August 9 “conversation” she spoke in a critical tone of the current definition—“severe, pervasive and objectively offensive” behavior. Without the “severe” and “pervasive” students could be categorized as offenders for an occasional, mild, unthinking comment. Without the “objectively offensive” it would be impossible to know what constitutes a violation. Acting in ways that others subjectively feel harassed by would constitute “guilt.” Impartially assessing the facts of a student’s behavior is meaningless if “guilt” is consequent upon others’ reactions to it. Goldberg didn’t indicate what specific changes she had in mind. All she made clear was her wish for participants to consider alternatives.

Had Goldberg been addressing responsible experts, that might have been reasonable. Experts might come up with useful technicalities and nuances. But Goldberg was not asking experts to rethink technical points on the basis of dispassionate legal reasoning. She was calling upon undergraduate students to suggest revisions. Common sense tells us their suggestions would typically be based on emotions, instincts and a herd mentality. Even more objective, clear thinking undergraduates will usually lack the knowledge needed to address the matter.

That is a key problem in Goldberg’s approach. Undergraduates need to be instructed in the principles on which sound laws are based. They must learn to subordinate emotion and instinct to objective legal reasoning. Their minds should be formed by good college policies. They should be subject to regulations made by those with greater knowledge and maturity. Of course many professors and administrators now oppose due process while supporting bias and draconian regulations. But undergraduate “activists” often take these tendencies to greater extremes.

It’s On Us has been a leading contributor to that campus culture. The organization was founded by the Obama administration to have precisely that influence. It has promoted its message in over 2,000 events during the seven years of its existence. Goldberg expressed strong support for its propaganda efforts—saying It’s On Us “does important work to energize campus communities.” Her “openness” to participants’ “suggestions” was merely part of a transparent charade. First a certain mindset is inculcated into students. Then those students are asked to make practical policy proposals. Those proposals then become the basis for policies that are “justified” on the grounds that “students asked for them.”

Policy makers need to understand who they are dealing with. Goldberg might oppose the worst excesses of an agenda driven by bias and hostility to due process. But she shares the basic orientations behind that agenda. The only question is if she is open to reasonable compromise.
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