The Hollow Nature of the “Dear Colleague” Threat

An interesting
article by Sara Ganim noted that with the conclusion of the Jerry Sandusky
trial, attention will shift to civil suits against Penn State and criminal
actions against former and current Penn State employees. Probably the most
explosive recent report came from NBC, which revealed existence of e-mails
among former top university officials (including the former president) on whether
not reporting Sandusky to police would be the “humane” thing to do. Before
apologizing under pressure from an alumni group, one Penn State trustee
expressed concern that the e-mails could suggest a cover-up.

The most striking
element of Ganim’s article came in its discussion of whether the Sandusky
affair’s aftermath could cost Penn State federal moneys. Ganim noted that even
though Penn State promises that all legal settlements with victims will come
out of investment moneys, effectively grant money (and tuition) will indirectly
subsidize the settlements–since any investment dollar that goes to pay a victim
is a dollar that can’t be spent on needed academic purposes. Nonetheless, the
federal funds seem likely to keep coming. Ganim wrote, “Terry Hartle, a senior vice president for the American Council on
Education, said the likelihood that Penn State is cut off from all of its
federal grants is extremely slim.”

There’s
no reason to doubt Hartle’s analysis, but it’s worth reiterating its
ramifications: it’s plausible that a conspiracy among senior administrators
occurred to defy at least state law regarding the mandatory reporting of sexual
abuse allegations, and even that sort
of university behavior doesn’t rise to the level of what would be necessary to
cut off federal funds.

Yet the central
premise of the “Dear Colleague” letter is that the “OCR may initiate proceedings to withdraw Federal funding”
from any college or university that doesn’t change its sexual assault
procedures to remove various protections for accused students. These changes,
of course, make it more likely that falsely accused, innocent students will be found guilty. 

Set aside the
political hollowness of this threat–it’s inconceivable that any administration
(much  less the current administration,
which desperately needs support from college students) would cut off federal
funds to any university over investigation procedures, just as it’s
inconceivable that even if an administration were so reckless to consider such
a policy that Congress would allow it.

Consider,
instead, the logical absurdity of the OCR threat, in light of Hartle’s comment
about Penn State. There’s only an “extremely
slim” chance that a university whose senior leadership might have
conspired to protect a sexual predator will lose federal funds. Yet the OCR
maintains it will seek to terminate federal funds to any university that
doesn’t follow its mandate to weaken due process protections for accused
students on campus.

How could anyone
take such a threat seriously?