The federal Department of Education appears across five episodes of The Bob Zadek Show as an object of libertarian criticism, with guests and host arguing variously for its abolition, its defunding, or its characterization as a disbursement office whose real power is money rather than law. The most sustained treatment concerns the department’s 2011 “Dear Colleague” letter on campus sexual assault, discussed in two episodes.
The case for elimination
Former New Mexico Governor Gary Johnson told Bob Zadek that eliminating the federal Department of Education might do more toward improving education than any other single act. Johnson said the federal government gives about 11 cents out of every dollar that states spend on education, but that it comes with about 16 cents worth of strings attached. Zadek added that the 11 cents was taken from residents of the states, so the money would have gone directly to education from the citizens to the states, but instead it makes a visit to the federal government, which takes off a little something for its trouble. A Better America (2010)
Austin Petersen, in a 2017 episode on federalism and the flat tax, asked whether a Department of Education is really needed or whether states can handle education policy for themselves, and whether parents can decide how to educate their children free from a federal regulatory body. Petersen said the country has only had a Department of Education since 1972, and that America became the greatest and most powerful nation on earth with an educational system that was divested to the states. He said he thinks the country does not need a federal Department of Education and that states should be able to set those standards for themselves. Federalism and the Flat Tax: The Austin Petersen Plan (2017)
The department as a disbursement office
In a 2022 episode with Joe Cohn on Title IX and due process on campus, Zadek said that for the most part the very purpose of the Department of Education is to decide who gets the money, that it is nothing other than a disbursement office, and that its teeth are that it holds back the money. He said the department has no SWAT team and no police force, but it has the dollars. Zadek described the dynamic as the federal government accumulating money through federal income tax, then using that money as a source of power — not statute, not police power, not criminal law — to coerce private colleges, which are not per se subject to federal regulation but do need the money. Joe Cohn on Title IX and Due Process on Campus (2022)
Zadek made a similar point in a 2023 episode with Will Duffield on jawboning against speech, saying the Department of Education exists primarily to disburse money to the states or to the colleges, and that it is a big disbursement office. He said that when a university gets a letter from the department saying what it thinks the school should be doing, that is like “your money or your life,” and described this as another example of jawboning — the government expressing its behavioral preference in a benign letter that has the weight of life and death to the recipient. ‘Jawboning against Speech’ with Will Duffield (2023)
The “Dear Colleague” letter and Title IX
Cathy Young, in a 2014 episode on due process on campus, said that colleges began setting up alternative disciplinary systems for sexual assault cases about 20 years earlier, and that several complaints from women who felt their cases were not handled well enough were taken up by the Justice Department as sex discrimination cases in 2011. She said that around the same time, in April 2011, the Department of Education Office of Civil Rights sent a letter to the presidents of colleges and universities about the handling of sexual assault and sexual harassment. Aren’t Men Entitled to Due Process on Campus? (2014)
Young said one of the most important recommendations was that the standard of proof in these cases be shifted from clear and convincing evidence — traditionally the standard for evaluating all kinds of complaints against students in campus discipline — to the preponderance of the evidence, which she described as the lowest standard of proof in a legal case, meaning the triers of fact believe there is a slightly greater probability, like 51%, that the evidence favors the complainant. She said that last March there was another joint letter from the Department of Education and the Department of Justice reiterating that this standard is the only one that is appropriate, and saying that colleges which do not use this lower standard of proof in evaluating sexual assault complaints stand to lose their federal funds. Aren’t Men Entitled to Due Process on Campus? (2014)
Zadek responded that there is no dispute that the feminist lobby is a potent political force, certainly in the Democratic Party, and that there is no equivalent countervailing male political lobby. He said the federal government is using the coercive power of federal grants to influence what happens on a college campus, and that the federal government should not be involved. He said colleges are being dragged into becoming quasi-judicial bodies, that they are not skilled in doing so, and that in a quasi-criminal proceeding where the criminal justice system has overwhelming safeguards to protect the accused, here there are overwhelming safeguards to ensure the accused gets convicted. Aren’t Men Entitled to Due Process on Campus? (2014)
In the 2022 episode, Zadek introduced the “Dear Colleague” letter as a letter from a bureaucrat to some college administrators, noting that it has no legal significance, and asked Cohn why a letter — not a statute, not a subpoena — from a bureaucrat to college administrators starts the topic. Joe Cohn on Title IX and Due Process on Campus (2022)
Cohn said the operative language of Title IX provides that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. He said courts in the late ’70s began tackling whether a school is living up to that promise if it allows its campuses to be permeated with sex-based harassment, whether by faculty members harassing students or students harassing each other, and that courts over a number of years concluded a school cannot be deliberately indifferent to known instances of sex-based harassment between students. Joe Cohn on Title IX and Due Process on Campus (2022)
Cohn said that in 2011 the Department of Education’s Office for Civil Rights sent the “Dear Colleague” letter, an informal letter telling all the schools it regulates its views on what is required under Title IX. He said the structure of Title IX says you are not eligible for federal funds if you have this sex-based discrimination on campus, so the penalty for violating Title IX is that you could lose all of your federal funds. He said that when the department, which is the agency chiefly responsible for figuring out if there are violations, says how it will measure whether a school is in compliance, even if it is not a binding document like a court case or a law or statute, a general counsel who ignores that warning would be committing malpractice. Joe Cohn on Title IX and Due Process on Campus (2022)
In the 2023 episode, Zadek said he had done many shows on Title IX abuse on college campuses defended by organizations such as FIRE, and that it all started with the “Dear Colleague” letter, which was jawboning. He said the Department of Education was concerned about what it perceived to be a “rape culture” on college campuses, that women were exposed to very bad behavior, and that it feared universities and colleges were sweeping it under the rug and using due process as a way to deny women their “day in court.” He said the department had no power, that there was no legislation through which it could act, and that this was during the Obama administration. He said the department wrote a letter addressed “Dear Colleague” and sent it to college presidents and provosts, saying that in general colleges should do a much better job protecting the rights of women and that it was concerned women were being treated unfairly in violation of Title IX. ‘Jawboning against Speech’ with Will Duffield (2023)
Across episodes
The department is discussed in 2010, 2014, 2017, 2022 and 2023. The 2010 and 2017 episodes argue for elimination on federalism and fiscal grounds, with Johnson emphasizing the strings attached to federal education dollars and Petersen emphasizing that states can set their own standards. The 2014 and 2022 episodes turn to the “Dear Colleague” letter and the preponderance-of-the-evidence standard, with Young supplying the account of the 2011 letter and the 2012 joint letter, and Cohn supplying the Title IX framework and the funding penalty. The 2023 episode reframes the same letter as jawboning, with Zadek connecting it to Duffield’s broader discussion of government pressure on speech. The later treatment adds the jawboning vocabulary and the disbursement-office framing; the earlier treatment supplies the specific standard-of-proof change and the funding threat.
What the sources do not cover
The excerpts do not state when the Department of Education was created beyond Petersen’s statement that the country has only had one since 1972, nor do they give the department’s statutory authorization or budget. They do not name the specific statute that enacted Title IX beyond Zadek’s reference to an important part of a federal statute enacted in 1972, and they do not state which amendment or constitutional provision the Title IX arguments turn on. The excerpts do not report the outcome of any litigation over the “Dear Colleague” letter, nor any department response to the criticism.