The Wall Street Journal wrote an op-ed about Secretary of Education Betsy DeVos’ speech at George Mason University regarding her intent to withdraw the Obama administration’s infamous Dear Colleague Letter that threatened the due process rights of students accused of sexual assault.  In it, though, the WSJ included a misconception.

The Obama Education Department’s response was to circumvent Congress and neglect normal executive-branch rule-making procedures mandated in the Administrative Procedure Act, such as soliciting public comment. Instead, it simply jammed the policy through by sending out a “Dear Colleague” letter, including an explicit threat that noncomplying schools could lose federal funding.

It takes two to tango.

The op-ed implied that the university/college recipients of the Letter were somehow bound by it.  This is not true: the Letter was not, and could not be, binding in any way shape or form exactly because the procedure for promulgating it by-passed statutory requirements: the Letter was no more than that, and certainly not a regulation implementing a statute.

The folks sitting in the management chairs at those universities and colleges knew this full well at the time, and they know it today.  The Letter gained force only from the cowardice of those folks sitting in those chairs.  They had only to push back and to refuse to comply with the urgings of the Letter.

Even the threat to withhold funds could never have effect since it was, and is, an entirely unenforceable claim, coming as it does as part of a non-binding Letter that could only urge an action.  The threat, inconvenient as it might have been to resist, had and has only the effectivity of a bully’s threat given it by a coward’s surrender to that bully.

It takes two to tango.  But it only takes one to duck and cover.