Taking Action on Title IX
Last week, Department of Education secretary Betsy DeVos did something extraordinary: after meeting with students who said that they were sexually assaulted in college, she spoke with seven others who claimed that their institutions had found them guilty of sexual assaults that they did not commit. She also met with a group of lawyers and education administrators, including two attorneys who have represented students accused of sexual assault in subsequent lawsuits against their colleges.
Hearing both sides of a controversial issue would seem routine for any policymaker, but that hasn’t been the case for campus sexual assault. Catherine Lhamon, who headed the Education Department’s Office for Civil Rights (OCR) in the Obama administration, refused to meet with groups advocating on behalf of accused students. She even initially declined, in writing, to confer with representatives from FIRE, the nation’s preeminent campus civil-liberties organization. Lhamon’s approach reflected the Obama administration’s strategy of redefining Title IX—the federal law banning sex discrimination in schools that receive federal funds—without soliciting public feedback. The administration made two important policy changes—one in 2011, the other in 2014—not as regulations, which require public notice and comment, but as “guidance” documents. Then, when asked whether the Education Department expected colleges to follow blindly the documents’ demands as if they were regulations, Lhamon said yes.
Ignoring critics allowed Obama’s OCR to avoid addressing the myriad dubious assumptions, and in some cases outright myths, upon which it relied to construct its one-sided Title IX policy—especially the premise that colleges could dramatically erode due-process protections for accused students without just as dramatically increasing the chances of wrongfully finding them guilty. Up to now, the OCR mandate that has attracted the most attention is the one letting colleges use the lowest standard of proof (preponderance of the evidence) in campus sexual-assault cases, even as the schools remain free to use a higher standard (beyond a reasonable doubt) for students accused of trivial offenses, such as petty vandalism. But other OCR stipulations, such as its 2014 assertion that allowing cross-examination of accusers “may perpetuate a hostile environment”—thereby violating Title IX protections—have had an even stronger negative effect. Fearful of negative media or OCR investigations, colleges have scrambled to create disciplinary systems in which students accused of sexual assault are presumed guilty and denied the tools to prove their innocence. As a California appellate judge remarked during oral argument in a due-process lawsuit: “When I . . . finished reading all the briefs in this case, my comment was, ‘Where’s the kangaroo?’”
George Mason University law professor David Bernstein recently noted that, despite the Obama administration’s reading of the statute, “Title IX itself doesn’t actually speak to specific procedural protections.” More broadly, according to Bernstein, it requires an “aggressive interpretation of Title IX to think it speaks to student-on-student sexual assault at all.” (The interpretation, which made sexual assaults the only felonies that colleges are legally required to adjudicate, dates from a Clinton-era OCR regulation.) But it has become an article of faith among accusers’-rights organizations—joined by Democratic and even some Republican legislators—that any shift in the Obama policies would suggest tolerance of campus rape.
House members who purport to worry about civil liberties in all other contexts fault DeVos for talking not only to advocates of campus accusers but also to advocates for the accused. Representative Robin Kelly (D-Illinois) tweeted that the education secretary “should be a champion for survivors of sexual assault, not their assaulters.” DeVos, of course, was meeting with students who claim that they were falsely accused and tried in tribunals that don’t meet minimal standards of due process. Carolyn Maloney (D-New York) accused DeVos of seeking to weaken Title IX “protections for campus sexual assault survivors.” But the policies at issue deal with the pre-adjudication stage—when it hasn’t been established whether the accused is guilty or the student accuser is a “survivor” of anything.
Ideally, DeVos would focus on Title IX’s obligations for colleges to provide counseling, medical assistance, housing changes, and academic accommodations to student accusers, while colleges leave the job of determining whether a criminal offense occurred to law enforcement, which has the necessary tools to collect evidence, interview witnesses, and determine facts. In the current environment, though, such an approach would be politically impossible. Still, the secretary’s repeated insistence that colleges provide “fair” procedures is an encouraging start.
Abandoning the Obama administration’s one-sidedness would help accused students as well as genuine victims: if a student has committed sexual assault, he or she should suffer consequences beyond what a college tribunal can mete out. But colleges and universities themselves would most benefit from a new Title IX regime. Institutions whose prime mission should be the pursuit of truth now routinely make life-altering rulings involving their students on the basis of wildly incomplete evidence, using procedures that seem designed less to discern the truth than to vindicate the claims of student accusers and pro-accuser ideologues. In this respect, if Betsy DeVos were to show courage on Title IX, she would help save colleges and universities from themselves.