Opposing kangaroo courts does not equal endorsing campus assault
In conjunction with Sexual Assault Awareness Month, observed every April, former Vice President Joe Biden recently sat down for an interview with Teen Vogue to discuss campus sexual assault, including “how sexual assault on campus initiatives may change under the Trump administration.”
While the interview focused on the laudable work of Biden’s It’s On Us campaign, it was the brief treatment of the new administration — specifically, of Secretary of Education Betsy DeVos — that made headlines. “Joe Biden Has Some Strong Words For Betsy DeVos,” rang the Huffington Post; “[Biden] is taking aim at DeVos,” echoed Politico’s Michael Stratford.
After exhausting an introductory catalog of “reasons to love former vice president Joe Biden,” and a much shorter list of prepared queries, Teen Vogue’s Vera Papisova finished the interview by offering: “People believe Betsy DeVos may be severely limiting Title IX protections for sexual assault survivors.” No stranger to a softball, Biden promptly shared his concern that “Secretary DeVos is going to really dumb down Title IX enforcement.” He then tactlessly implied that any deviation from Obama-era enforcement procedures is tantamount to endorsing sexual assault — “the real frightening message you’re going to send out is, our culture says it’s OK” — and rounded it out with the ludicrous claim that DeVos “didn’t affirm that rape and sexual assault are forms of sexual discrimination” in her confirmation hearing.
In a widely covered exchange with Sen. Robert Casey (D-PA) during her hearing, DeVos made plain her position on sexual assault, emphatically stating: “sexual assault, in any form or in any place, is a problem… Assault in any form is never okay, and I just want to be clear about that.” When asked whether she would uphold Obama-era Title IX guidance, however, DeVos was considerably more equivocal, promising to look into the issue further. Herein lies her true crime in the eyes of folks like Casey and Biden.
Putting aside the “problematic mansplaining” inherent in attempts to moralize the threat of sexual assault to a woman — much less to a mother of two daughters — if Biden is worried about “dumbing down” Title IX enforcement, he’s six years too late. Wielding Title IX compliance like some sword of social justice, the Obama administration used a series of extralegal guidance documents to significantly expand the definition of sexual harassment while lowering the standard of evidence required to find someone guilty of it.
In 2011, a “Dear Colleague” letter issued by the Department of Education’s Office of Civil Rights (OCR) informed all schools receiving federal funds to use the “preponderance of evidence” standard — the lowest possible standard of proof in our judiciary system — in all investigations of sexual harassment, ranging from unwelcome sexually charged speech to sexual assault and rape. The letter also imposed a form of double jeopardy by requiring schools to allow accusers to appeal not-guilty rulings and “strongly discouraged” them from allowing cross-examination of accusers. In a self-proclaimed “blueprint” for Title IX compliance issued in 2013, the Education and Justice departments instructed schools to adopt a shockingly expansive and unconstitutional definition of sexual harassment, and made clear that conduct needn’t even be considered “objectively offensive” by a “reasonable person” to constitute harassment.
Despite feigning to Congress that these documents only constituted “guidance,” the Obama administration continued to promulgate these standards in their investigations into colleges and universities’ Title IX procedures. The destructive result was twofold: to avoid federal investigations, colleges and universities adopted overbroad speech codes and increasingly moved toward inquisitorial-style investigations of campus sexual harassment and assault — simultaneously violating constitutionally protected rights of free speech and due process.
Today, the pernicious effects of these policies have become apparent. The chilling displays of campus illiberalism at the University of California at Berkeley, Middlebury College, and Wellesley College represent only the most public manifestations of the threat to free speech and expression that plagues schools across the nation. Students and professors alike are subjected to unjust and negligent investigations for the most subjective of offenses with a frequency approaching ubiquity.
DeVos’s reticence to continuing the Obama administration’s Title IX enforcement policies, then, is wholly justifiable. Nor is she alone in questioning their malignant repercussions on campus. Along with the Foundation for Individual Rights in Education (FIRE) and various civil rights organizations, countless others have publicly opposed Obama-era Title IX guidance, including several senators, the American Association of University Professors, and more than a score of Harvard Law School faculty members.
Curiously, protestations about DeVos’s nefarious designs on Title IX come amid nearly 100 days of inaction on the subject by the Trump administration. Although the administration will likely act soon, DeVos has already made good on her promise to gather information about the law and its implications, holding several meetings on the issue in the last few weeks alone.
While legitimate and persuasive arguments will undoubtedly be made regardless of how the Trump administration proceeds, Biden’s statements qualify as neither. What’s more, anyone claiming DeVos will “dumb down” student protections not only exposes that he’s acting in bad faith, but that he clearly hasn’t been paying attention, either.