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Op-Ed: Betsy DeVos’s Due Process

Education Secretary Betsy DeVos admitted last week that the adjudication of campus sexual assault is “an issue we’re not getting right.” Before correcting course, Mrs. DeVos is meeting with rape survivors, their advocates, administrators—and even students who say they were wrongly punished under the Title IX law that covers such cases.

Far from seeing the wisdom in this multitude of counsels, progressives are outraged. Pennsylvania Sen. Bob Casey complained that meetings with the latter group constitute a “slap in the face to the victims of campus sexual assault,” while Guardian columnist Jessica Valenti accused the secretary of “enabling rape deniers.”

But Mrs. DeVos is right to consider the plight of the accused. The Foundation for Individual Rights in Education estimates that more than 170 students have brought legal challenges against universities over Title IX decisions. In more than 50 completed cases, courts have sided with the accused.

Many of these lawsuits hinge on the lack of due process for the accused. The Obama Administration’s infamous 2011 Dear Colleague letter mandated that students can be punished based on a “preponderance of evidence,” a burden of proof far less rigorous than the earlier “clear and convincing evidence” standard.

That same Dear Colleague letter also “strongly discourages” cross examination, which it says “may be traumatic or intimidating” to alleged victims. The accused frequently lack legal counsel and have often been prevented from presenting exculpatory evidence. Even when students are initially found not guilty, their accusers can appeal the decision. Meanwhile, the Title IX adjudicators who make life-changing determinations sometimes have as little as five hours of training.

Accused students suing their college often invoke Title IX’s own protections against gender bias, saying universities discriminated against male students, who account for 99% of those facing allegations of sexual assault, harassment or misconduct. Last week Columbia University settled with Paul Nungesser, the man accused of sexual assault by Emma Sulkowicz, who famously hauled a mattress around campus for months to publicize her charges. The university cleared Mr. Nungesser, but his lawsuit claimed the university abetted her “gender-based harassment” against him.

In higher ed these days, it’s taboo to admit that current Title IX tribunals are tipped in favor of the accuser. A recent article in the Yale Journal of Law and the Humanities even argued that demanding due process for accused students is a form of rape-culture propaganda that “exclude[s] victims and their advocates from having a voice in the discussion.”

Sexual assault charges deserve to be investigated, but liberal academia is using Title IX to silence ideological opponents, often complaining that peaceful dissent constitutes actionable harassment on the basis of gender or sexual orientation. Mrs. DeVos is right to revisit the Obama-era guidance that has turned the law into an ideological weapon, and part of that is learning from its victims.

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