Ferguson dismissal highlights DOE overreach

The federal government may not create jobs, but it sure can take them away.

Citing its Title IX mandate, Swarthmore last week revoked its offer of a Resident Assistant (RA) position to Mia Ferguson after she refused to disclose details of a fellow student’s sexual assault case to college authorities. Ferguson has come at odds with the administration before, filing a complaint last spring under the Clery Act alleging that the College had shirked its legal responsibilities to properly report incidents of sexual assault.

Under the broad interpretation of Title IX set forth by the Department of Education, Resident Assistants are required to report any and all instances of sexual violence to the College. What renders Ferguson’s case so unique is the fact that she learned of the assault case before becoming an RA. The College is making the Title IX reporting requirement retroactive – something that even the DOE’s far-reaching interpretations of Title IX do not mention.

The College’s bizarre legal logic sets a dangerous precedent, essentially removing the ability of victims who don’t want to report their assaults to confide in their friends. After all, those friends might one day become RAs, Student Academic Mentors (SAMs), Drug and Alcohol Resource Team (DART) members or other employees identified by the College as subject to the retroactive mandate and thus be forced to reveal every instance of sexual assault they ever learned of, regardless of whether that information was told to them in confidence.

We’ll leave the question of whether Ferguson’s firing was retaliation for her Clery Act complaint to the more cynical, but this episode is part of a larger pattern of colleges, under government orders, infringing on individual rights.

Victims are fully capable of making their own decisions on whether or not to report; they don’t need the Department of Education’s vague and arcane reporting requirements aimed at forcing their stories into the hands of college authorities. Moreover, the vague wording of the DOE mandates concerning reporting requirements open up the possibility of their abuse by colleges, as we saw in the case of Ferguson’s dismissal.

The Department of Education’s 2011 “Dear Colleague” letter mandates that colleges open investigations into a sexual assault case regardless of whether local law enforcement has also done so. One particularly confusing passage from the letter reads:

If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation.

This contradictory passage is emblematic of colleges trying to substitute for the U.S. legal system – a substitution mandated, oddly enough, by the federal government. Leaving interpretation of this confusing language up to colleges will naturally result in a conflict of interest, as colleges unsuccessfully attempt to comply with reporting and investigation mandates while also trying to maintain respect for victims and their choices.

While we encourage victims to come forward with their stories and cooperate with the local police, we believe that victim rights come before the interests of the College or the government, and all of us must respect the choice of a victim not to report.

The debacle with Ferguson is the natural result of a Department of Education that seeks to deemphasize regular law enforcement in favor of college bureaucracies. Saddled with the responsibility of enforcing federal “law,” colleges – with their own interests and responsibilities – will intentionally or unintentionally twist the vague wording of the “Dear Colleague” letter until we have RAs being fired and victims’ privacy being violated.

We call upon the Department of Education to get colleges out of the judiciary process and put the law back in the hands of law enforcement.

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