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Why the Unfair Sex Tribunals of Title IX Are Losing Ground

In a reproof to Obama-era guidance on campus sex hearings, Education Secretary, Betsy DeVos issued interim Title IX guidance fair to the accused as well as the accusers. This brought a storm of abuse from the founders of the kangaroo court system, favored by the Obama team.

The lawsuits against the interim guidance issued by DeVos appear to have stalled. So on June 27, a coalition of accusers’ rights organizations invoked an obscure law, the Data Quality Act, to demand “corrections” in the September 2017 guidance issued by DeVos. The effort, which smacks of desperation, doesn’t seem likely to yield a victory for the groups, but that’s probably not the goal—as a fundraiser and publicity effort, the letter probably will serve its purposes.

The accusers’ rights groups claim that the interim guidance falls short factually in six respects, reproduced below:

  • “Many schools [before the Prior Guidance] had traditionally employed a higher clear-and-convincing-evidence standard.”

  • “[M]any schools [before the Prior Guidance] had previously followed procedures reserving appeal for accused students.”

  • “As a result [of the Prior Guidance], many schools have established procedures for resolving allegations that lack the most basic elements of fairness and due process.”

  • “As a result [of the Prior Guidance], many schools have established procedures for resolving allegations that … are overwhelmingly stacked against the accused.”

  • The Prior Guidance “led to the deprivation of rights for many students–both accused students denied fair process and victims denied an adequate resolution of their complaints.”

  • The Prior Guidance “has not succeeded … in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires.”

The groups’ objections fall into two categories. First, they claim that the interim guidance inappropriately uses the word “many,” in large part because a reader of the guidance would assume it was discussing the sexual misconduct policies of not merely the nation’s roughly 5300 colleges and universities, but also its approximately 98,000 K-12 schools. In this Amelia Bedelia-like formulation, the accusers’ rights organizations are pretending to interpret the sections of the guidance discussing sexual assault adjudications as discussions of Title IX tribunals in kindergarten. No one can take their rhetoric seriously.

Second, the accusers’ rights group dispute the guidance’s claims about the unfairness of post-Dear Colleague letter practices. They cite for this assertion an ad hoc survey by one of the Senate’s leading foes of campus due process, Claire McCaskill, an article in Humanity and Society examining procedures in Maryland, and a Ph.D. dissertation examining policies in North Carolina. Strikingly absent from this list: articles from law professors such as Tamara Rice Lave (cross-examination), Ben Trachtenberg (race), and Aya Gruber (ideological bias) exposing multiple elements of unfairness in Title IX tribunals.

In place of these obvious signs of unfairness, the accusers’ rights groups cite claims that in Maryland, some colleges give to accused students but not to the accuser the “right to receive written notice of the charges.” Yet it’s the accuser who made the charges in the first place—presumably, she or he knows what s/he said or wrote to campus authorities. Another example, from the McCaskill “survey”: “82% of schools allow alleged perpetrators to challenge hearing members regarding impartiality or conflicts of interest, while only 78% provide the same right to survivors.” Apart from the odd wording (how have the accusers’ rights groups decided that all complaining students are “survivors”?), it’s striking that the best the letter could do to suggest a bias in favor of the accused was a statistically insignificant gap from an ad hoc “survey” on a comparatively minor due process point.

Perhaps the letter’s only candid sentence was a claim that the interim guidance “fails to define what it means when it refers to ‘the most basic elements of fairness and due process’ or what it means to have procedures be ‘overwhelmingly stacked against the accused.’” We know how the accusers’ rights groups define “fairness”—the Obama-era standards that called for lower standards of proof, allowed double-jeopardy principles, strongly discouraged cross-examination under the format used by most schools, and mandated guilt-presuming training materials that schools don’t provide to accused students before their hearings. It seems as if they’re outraged that DeVos doesn’t share this definition of “fairness,” which motivated the letter.

I suspect there’s one other motivation here: establishing #Resistance credibility boosts fundraising. One of the signatory groups, SurvJustice, just advertised for a new executive director, with a salary of between $85,000 and $100,000.

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