Our friend Hans Bader has written a new column for the Competitive Enterprise Institute.

Did Slanted NPR Story Lead to Hasty, Illegal Education Department Sexual Harassment Rules?

Bad things can happen when an agency (like the Education Department) throws caution to the wind and regulates based on slanted media coverage from National Public Radio, rather than facts and evidence.

Checks and balances exist for a reason. When agencies impose new obligations on the institutions they regulate, they are supposed to first give the public notice of their proposed rule, and an opportunity to comment on it. This requirement, mandated by the Administrative Procedure Act, enables members of the public to point to legal or factual mistakes that may have precipitated the agency’s proposed rules.

But under the Obama administration, the Education Department has ignored these requirements. In “Dear Colleague” letters and “guidance” documents issued without any prior notice or comment, it has imposed on colleges a series of detailed,prescriptive, and controversial rules for responding to allegations of sexual harassment or assault—rules very much at odds with the deferential tenor of the Supreme Court’s Gebser and Davis decisions.

Those rules include procedures, time tables, and evidence rules that sharply contrastwith those previously used by many colleges for all categories of offenses. This has pressured colleges to create a costly, specialized bureaucracy on campus to handlesexual offenses, rather than using one disciplinary system for all offenses.