Deregulate to Undermine Political Correctness

Donald Trump has happily announced that his administration will be dedicated to deregulation. And one very important place to deregulate is higher education. Not only will discarding regulations make education less expensive but it will help temper political correctness.  Higher educational bureaucrats, not professors, are the worst offenders when it comes to forging the manacles for impressionable minds.  And bureaucrats are hired and empowered in so no small part by federal regulations.

The volume of regulation in higher education is truly astonishing. It is not only conservatives who object. Here is a 2015 summary by the bipartisan task force on higher education:

Focusing solely on requirements involving the Department of Education, the HEA contains roughly 1,000 pages of statutory language; the associated rules in the Code of Federal Regulations add another 1,000 pages. Institutions are also subject to thousands of pages of additional requirements in the form of sub-regulatory guidance issued by the Department.  . . . In 2012 alone, the Department released approximately 270 “Dear Colleague” letters and other electronic announcements—this means that more than one new directive or clarification was issued every working day of the year.

But classical liberal and conservatives have particular reason to object to these regulations. First, the regulations of higher education emerge without complying with the processes of administrative law that are supposed to tame the modern state. Dear Colleague letters in particular often provide interpretations of the law that purport to resolve policy questions without going through notice and comment rulemaking. And, as my co-blogger, Mike Rappaport has noted, those rules can be enforced without judicial oversight, because universities who fail to comply may lose all their federal funds.

Second, the substance of these letters sometimes offends basic notions of due process.  The Education  Department has encouraged students to be expelled from university for sexual offenses on the basis of a preponderance of the evidence even without having the formal right to confront their accusers.

Third, and most importantly, the federal regulatory regime empowers university bureaucrats. And it is those bureaucrats rather than professors who are most responsible for political correctness. For instance, it was a group of university bureaucrats who sent out instructions on how Yale students should dress on Halloween. At Harvard they told students how to talk to their less enlightened family members.  Deregulation deprives  the engine of political correctness of its high octane fuel.

Thus, President Trump’s Education Department should revoke controversial Dear Colleague letters and promise not to regulate by informal missives in the future.  More generally, it should greatly streamline the regulations of higher education, freeing up universities to fire many of their bureaucrats and use the money to lower tuition and improve instruction.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. gabe says

    ” For instance, it was a group of university bureaucrats who sent out instructions on how Yale students should dress on Halloween. At Harvard they told students how to talk to their less enlightened family members. Deregulation deprives the engine of political correctness of its high octane fuel. ”

    Perhaps, we could say that deregulation would deprive the bureaucrats of the basis for their $300K per annum salaries as Mark Pulliam notes in this piece today at Spectator. My Gawd, we wouldn’t want that now would we?

    https://spectator.org/political-correctness-deep-in-the-heart-of-texas/

    Hopefully, John, you are being able to enjoy your holidays without the helpful “guidance” of university bureaucrats as to proper conversation and talking points for the Holiday!

  2. Ali Bertarian says

    “Deregulation deprives the engine of political correctness of its high octane fuel.”

    Given the heavily leftist nature of academia, being deprived of regulations is not likely to make any change in the course of what those professors and bureaucrats already want to do. They are adhering to regulations that they would have happily created.

    A better course of action would be to make regulations that forbid political correctness, and deny federal money to institutions that disobey those regulations. Better yet, just get rid of the real fuel: all federal money funding the fun and games of academia.

  3. nobody.really says

    And, as my co-blogger, Mike Rappaport has noted, those rules can be enforced without judicial oversight, because universities who fail to comply may lose all their federal funds.

    When did Rappaport note this? Here’s what Rappaport actually said:

    While the Office’s decision is subject to judicial review, IF THE COLLEGE LOSES ON JUDICIAL REVIEW, then the college can lose all federal funding.

    Rappaport noted was that colleges, afraid that they might lose if they took their case to court, and that the consequences of losing would be severe, decide to settle. But that dynamic applies to litigation generally, right?

    I have gay friends who complain that fundamentalists engage in terrorism by threatening them with hell. I argue that the fundamentalists are not threatening to send gay people to hell; they are merely engaging in free speech about the consequences that the fundamentalists anticipate resulting from gay sex. Gay people are free to agree or disagree with the fundamentalists. If they disagree, they should feel free to ignore the fundamentalists. If they agree, then perhaps they should give heed to the fundamentalist’s warnings. But free speech is not the source of their problems.

    By the same token, I see no harm in the Department of Education engaging in free speech. Colleges are free to agree or disagree with the DoE. If they disagree, they are free to ignore the DoE. If they agree, then perhaps they should give heed to the DoE’s warnings. But free speech is not the source of their problems.

    Ok, perhaps the DoE’s exercise of free speech does alter a college’s circumstances, in that it makes it harder for the college to deny that they had received notice of what the law requires. But if it’s the DoE’s job to enforce the laws, I see no reason why the DoE would want to leave people in doubt regarding the DoE’s interpretations.

    Now, perhaps COURTS should decline to regard the DoE’s notices as providing notice about the law’s requirements. In that case, the party at fault is the court, not the DoE.

    But I’m really engaging in shadow-boxing here: Neither McGinnis nor Rappaport have cited to any real, flesh-and-blood example of a college losing all its federal funding for ignoring a Dear Colleague letter. Instead, it seems as if we’re hunting for those mythical Muslim Americans who celebrated the downing of the Twin Towers in New York. It’s a great story for feeding the paranoid delusions of people with persecution complexes. It would be a better story if someone could show that it bore any relationship to fact.

  4. gabe says

    “But if it’s the DoE’s job to enforce the laws, I see no reason why the DoE would want to leave people in doubt regarding the DoE’s interpretations.”

    Yet, it does not follow that those “interpretations ARE the law – is not that the issue here – and that those interpretations expounded via various “Dear Colleague” letters, when backed by the “threat” (real or otherwise) of Federal force may reasonably be said to be something more akin to a whip rather than a bullhorn. n’est ce pas?

    I, for one, do not see this as evidence of paranoia or a delusional mindset; then again, nobody really believes that it is or that should the Court fail to accept the DoE’s *interpretation(s) that it is the *fault* of the Court.

    OMG, how we attempt to *victimize* the poor dear coleagues at the DoE! Shameful, I tell you, shameful!!!!!

    • nobody.really says

      “But if it’s the DoE’s job to enforce the laws, I see no reason why the DoE would want to leave people in doubt regarding the DoE’s interpretations.”

      Yet, it does not follow that those “interpretations” ARE the law – is not that the issue here – and that those interpretations expounded via various “Dear Colleague” letters, when backed by the “threat” (real or otherwise) of Federal force may reasonably be said to be something more akin to a whip rather than a bullhorn. n’est ce pas?

      What are you talking about?

      The law is reflected in the constitution, statute, rules, and common law. The DoE exercises free speech to offer its interpretation of the law. And yes, when that interpretation is backed up by the threat of enforcement—when the interpretation coincides with what courts are willing to enforce, based on the court’s reading of the constitution, statutes, rules, and common law. What’s wrong with the courts enforcing the law? And what’s wrong with the DoE warning people about the fact that courts will enforce the law?

      I, for one, do not see this as evidence of paranoia or a delusional mindset….

      I’m reminded of a 1830 book review, in which Thomas Babington Macaulay was inspired to observe that an author “brings to the task [of evaluating public policy] two faculties which were never, we believe, vouchsafed in measure so copious to any human being – the faculty of believing without a reason, and the faculty of hating without a provocation.”

      So when you say that you do not see this mindset as evidence of paranoia or a delusional mindset, do you mean that you have evidence in support of this mindset? Or do you mean that you are willing to embrace this mindset regardless of evidence?

      • gabe says

        “DoE warning people about the fact that courts will enforce the law? “-

        But that is the POINT – it is the matter under contention – is it the Law – or is it the rather interesting phenomenon known as “nudging” by FAS minions. simply because some low level ideologue employed (deployed is perhaps a better word) by the DoE asserts that Title IX’s use of the word “sex”, as one example, includes transgender types DOES NOT a make it THE LAW.

        Now, if you are only arguing that since the courts in their remarkable ability to divine “secret” meanings are, for their own reasons (ideological preference, sheer stupidity / cupidity) are going to support this FAS assertion, THEN, yes, you are right – blame the Courts. Yet, it does not make it the LAW, properly understood.

        BTW: You must be rather upset over the recent election as you appear to be resorting to the usual practice of attributing hateful motives to others (“hating without a provocation.”).

        BTW2: And where precisely is YOUR evidence, other than in mere slanderous accusations, that it is delusional and paranoid.

        Are there no valid reasons for objecting to Administrative Agency overreach or “nudging.”

        As for paranoia regarding the “mythical Muslims”, I will say this:

        There may not have been a lot of them dancing in the streets of Newark – BUT there were an awful lot of them dancing in the Middle East. And that really is the point behind your little sniping, isn’t it? To highlight the “folly” (delusion / paranoia) of The Trumpster for making the unsubstantiated calim about Newark is, of course, a means of attacking the legitimate concerns that many Americans feel regarding unrestricted immigration to our shores from the Middle East. Yet, why would we want to allow into our polity those peoples who take delight in our misfortune and the death of thousands of innocent citizens.

        http://www.thegatewaypundit.com/2015/12/ap-called-out-for-hiding-video-of-thousands-of-palestinians-celebrating-911-attacks/

        It ain’t paranoia if it is true – even if several thousand miles away.
        Hey, after all, sometimes even paranoids have real enemies; then again, maybe nobody.really actually has enemies, it could just be delusional!

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