How Trump Will Try to End Political Correctness

One of President-Elect Donald Trump’s main campaign promises has been to end “political correctness,” which he seems to define as an increasingly sensitive culture that finds more and more types of rhetoric unacceptable. Thus far, Trump has done much to end political correctness just by saying the things he says and encouraging his supporters to do the same. But when Trump becomes President, he’ll likely try to do something to fulfill his pledge, and there is an easy target: the Office of Civil Rights in the Department of Education.

“Politically correct” gained popularity as a term starting in the late 1980’s and was promoted by leftist professors in universities across the country (though it quickly became a term of mocking criticism. Since then, college campuses have seen successive waves of cultural sensitivity. So it makes sense that Trump would focus on trying to change the culture of higher education. And there are clear precedents set by the Obama administration that Trump will use to carry out his agenda.

In higher education, the Office of Civil Rights (OCR) investigates claims that colleges are not doing enough to protect their students from various forms of discrimination and abuse—that’s discrimination based on race, gender, national origin, disability, and age based on a variety of federal statutes. OCR has also increasingly investigated colleges for not appropriately dealing with sexual assault cases.

Conservatives have criticized President Obama for using “Dear Colleague” letters, which are guidance letters issued by the Department telling colleges how to handle civil rights issues. Unlike other types of executive regulation, “Dear Colleague” letters go through no rule-making process—the Department of Education goes through an internal process before issuing the letter, but there is no oversight. Additionally, because they are just issuing guidance, a school can’t challenge the letter, not easily anyway. The only way to challenge the guidance is if a school is sanctioned after being found in violation by the Office of Civil Rights, then the school would have to sue and then the courts could determine if the guidance violated the law. That makes “Dear Colleague” letters powerful because they are easy to issue and difficult to challenge. We can expect the Trump administration to use this tool a lot when it comes to political correctness, but before we explore what he would do, we need to understand how the Obama administration has used these letters.

Obama administration's use of “Dear Colleague” letters

The two most important letters were issued in 2010 and 2011. The 2010 letter, largely aimed at K-12 schools but applying to colleges as well, stated that a school’s failure to stop bullying may mean that the school is violating law by allowing for discrimination. Here's a key passage:

Harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school. When such harassment is based on race, color, national origin, sex, or disability, it violates the civil rights laws that OCR enforces.

The Office of Civil Rights then issued another “Dear Colleague” letter in 2011 on how to handle sexual assault cases. The most controversial aspect of that letter had to do with standards of evidence. Some schools had been using the “‘clear and convincing’ (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred)”. But the Office of Civil Rights said that colleges needed instead to use a “preponderance of evidence (i.e., it is more likely than not that sexual harassment or violence occurred)”, a much looser standard. OCR stated that colleges were in violation if they used the clear and convincing standard.

Two members of the U.S. Civil Rights Commission (who had been appointed by George W. Bush) wrote to Congress that the 2011 OCR letter may violate civil rights, including due process and free speech protections.

This is hardly just a conservative issue. More liberal commentators, like Emily Yoffe at Slate, have voiced concerns that the Office of Civil Rights “has overstepped its bounds in micromanaging university policies and enforcing draconian rules that infringe on the rights of the accused.”

After Harvard created a new sexual assault policy that adopted the “preponderance of evidence” standard, a group of 28 current and former Harvard Law professors called on the school to abandon its new sexual assault policy saying that “Harvard apparently decided simply to defer to the demands of certain federal administrative officials.”

The two conservative members on the Civil Rights Commission also criticized the chilling effect OCR can have on schools. OCR argues that launching an investigation into a possible violation is better than outright suing the school. But the commissioners criticized this approach, since it’s a much lower burden on OCR, but still a significant burden on the schools:

The institution suffers the reputational harm of being branded as having engaged in or tolerated racial discrimination or sexual harassment. When OCR finally offers the institution a settlement in lieu of going to court, the institution frequently has no alternative but to accept. But this means that OCR is almost never seriously challenged, and the courts never have the opportunity to rule OCR’s guidance out of bounds. Individual students who are disadvantaged by OCR’s policies either would not have standing to challenge them or would not have the resources and grit to endure being dragged through the courts for years.

What Trump will do

Those commissioners argued that Congress should scale back funding of the Office of Civil Rights in the Department of Education, and many other conservatives agree. Expect it to happen under President Trump. By defunding OCR, Trump would not only be fulfilling his promise on political correctness, but also cutting a part of the Department of Education—another of his campaign promises.

But Trump will likely go further. While some conservatives might seek to ease the use of “Dear Colleague” letters since it’s an example of nearly unaccountable executive power, it’s just as likely for a Trump administration to use the precedent to pursue new ends. And even though Republicans may defund most of OCR, what little is left of the office could be repurposed for Trump’s new priorities.

That means a new “Dear Colleague” letter that allows the “clear and convincing” standard to be used in sexual assault cases, and perhaps even mandating it. That guidance may or may not hold up in court but, again, it would be very difficult to even get it in front of a court.

The preponderance of evidence standard has been criticized by many legal theorists for potentially violating due process, but it’s hard to imagine a worse prophet for the Republicans on this issue than Donald Trump. After all, Trump has bragged about committing sexual assault and been accused of doing it, and should his administration change the standards of evidence, critics will argue that Trump is making it more difficult to punish perpetrators of sexual assault.

In terms of political correctness, Trump can go further in attempting to protect certain types of speech on campus. The first thing he can do is loosen the definition of harassment that was issued in the 2010 “Dear Colleague” letter by adopting a different standard. There’s a clear one available.

In September, 2015 Jonathan Haidt, a social psychologist at New York University, and Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), wrote an influential article for The Atlantic titled “The Coddling of the American Mind.” In it, they argued that colleges were shielding students from different types of ideas through censorship in order to protect emotional well being, which they claimed was counterproductive. Their primary policy suggestion to reverse this trend was the following:

Congress should define peer-on-peer harassment according to the Supreme Court’s definition in the 1999 case Davis v. Monroe County Board of Education. The Davis standard holds that a single comment or thoughtless remark by a student does not equal harassment; harassment requires a pattern of objectively offensive behavior by one student that interferes with another student’s access to education. Establishing the Davis standard would help eliminate universities’ impulse to police their students’ speech so carefully.

Haidt and Lukianoff were hoping Congress would do it, and maybe Congress will get around to it, but there’s no reason that Trump can’t issue a “Dear Colleague” letter along the same lines. When issuing such a guideline, the Department could even argue that colleges applying a looser standard could be violating students’ rights to free expression and other rights. Schools might then be worried they will be investigated by the (likely depleted) Office of Civil Rights.

In that same letter, or another one, the administration could also issue guidance on the right to free speech more broadly. They might urge colleges to adopt certain standards like the free speech code from Purdue University, rated highly by FIRE for tolerance of dissident views. They might look to Purdue because former Indiana Governor Mitch Daniels is the president of the school, and as the godfather of Indiana Republican politics, he has the ear of Vice President-elect Mike Pence (Daniels has also been floated as a potential Secretary of Education).

While conservatives, free-speech advocates, and people who think colleges should not issue guidance on Halloween costumes will applaud the efforts, progressives will worry. After all, Trump is making it harder to crack down on harassment at the same time that harassment against certain minorities may be increasing as a result of Trump’s candidacy and election. Trump’s history of racist and misogynistic statements, coupled with the perception that many of his supporters harbor such feelings as well, means that this will become a flashpoint. Moving forward, we’re going to be hearing a lot more about the Office of Civil Rights in the Department of Education.