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Op-Ed: Sexual Politics

In the annals of American justice, it will be hard to exceed what the Obama administration tried to do with its Title IX guidance letter in 2011. The letter from the Department of Education—most ironically, from its Office of Civil Rights—effectively eliminated centuries of due-process rights at every institution of higher learning in the U.S. That transgression is about to end.

Education Secretary Betsy DeVos is expected to rescind the rules imposed by the 2011 letter in the next week or two. In advance of formal rule-making, according to senior officials, the department will issue interim guidance on handling campus sexual-abuse cases.

On the crucial issue of evidence, the interim guidance will permit schools to immediately adopt the higher “clear and convincing” standard of proof. It will tell schools they should give equal legal treatment to both parties in these cases, as in the calling of witnesses or the presence of attorneys.

Formal rules will emerge after a public notice-and-comment period, which is the federal rule-making requirement President Obama’s appointees tossed aside.

While the interim guidance isn’t mandatory, the department will retain and if necessary use its enforcement authority after the formal rules emerge.

Mrs. DeVos is not going to threaten to withdraw a school’s federal funding, as happened with the Obama diktat. That hammer likely won’t be necessary.

By now most institutions want a modus vivendi on this issue to replace what had become a crudely run jihad by left-wing lawyers in the Obama Education Department and the network of ideological enforcers their order created on the nation’s campuses.

Indeed, after Mrs. DeVos’s speech last week announcing her intention to rescind the rules, it was striking how muted the public opposition was. Among what’s left of serious minds in academia, there was an awareness that something here had gone waaaay off the rails. Faculty at both Penn and Harvard law schools had already issued statements decrying the Obama sexual-abuse rules as fundamentally unfair to the accused.

It is difficult to express what a big deal this is—or should be. Basic due process guarantees have existed in English-language law since they were embedded in the King John’s Magna Carta in 1215. The U.S. Constitution’s Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel.”

One has to ask: How in 2011 did this rule roll out of the Obama Education Department and become the law of the land in academia without so much as a peep of outrage from them or the American press? Imagine the revolt if an administration attempted to impose on every U.S. newspaper such a sweeping dilution of the First Amendment. Donald Trump’s mere accusation that the press is fake news has produced a nonstop death struggle between the media and White House.

The explanation that the universities caved because the Obama lawyers threatened to withhold their federal-funding fix is persuasive but insufficient. Policy ideas like the 2011 sexual-abuse standards have a provenance, usually among left-wing faculty of the sort who emerged when the Obamas got their degrees in the 1980s. So it was with the Title IX “guidance,” which jumped overnight—by fiat—from the outer edge of feminist legal theory to established federal policy.

In testimony presented to Congress in 2014, Nancy Chi Cantalupo of Georgetown Law School’s Victim Rights Law Center made a detailed case for the rules. “It is downright dangerous,” she wrote, “to conflate civil rights and criminal justice approaches to sexual violence and allow criminal justice responses to dominate our collective imagination regarding how to address this violence.” Meaning sexual abuse is a unique, transcendent category of injury, which justifies diminishing due process.

The most definitive criticism of the Obama Title IX enforcement was written in 2015 for the Yale Law & Policy Review by, of all people, Janet Napolitano, who was Mr. Obama’s first homeland security secretary and is now president of the University of California system. Ms. Napolitano’s careful but forceful essay—actually a precursor to Mrs. DeVos’s speech last week—described all sorts of compliance problems and dilemmas created by “ambiguous legal requirements” and congressional legislation.

The creation of an atmosphere on campus akin to the Salem witch trials was the result of Mr. Obama’s explicit policy choice to manipulate bedrock legal principles for a political goal. After the DeVos speech last week, former Vice President Joe Biden denounced “any rollback of Title IX protections.” Thus, demoting due process standards is now Democratic dogma.

After the DeVos announcement restoring widely accepted legal principles to America’s campuses, we’re going to find out fast who stands where on this subject.

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