With Title IX rewrite, DeVos gets it right for accusers and accused
After much anticipation, Secretary of Education Betsy DeVos has released new Title IX guidelines to reform sexual assault adjudications on college campuses. In the wake of 117 reversals in court, as well as legal scholars from across the political spectrum crying foul, Secretary DeVos has reinstated due process rights for the accused, which had been stripped away under President Obama. It is a win for the Constitution and the rule of law — and something that I applaud as a woman, former college student, and now mother of three sons.
Due process, a bedrock principle of our nation, is enshrined in our Constitution, but its honeymoon period — if ever it enjoyed one — definitely has come to an end. As gender studies, identity politics and bogus statistics seep into the mainstream, the words “due process” have become, in some circles, almost an epithet. The courts, the American Bar Association, and now the Department of Education are fighting back.
If Secretary DeVos gets her way and these rules go through after the 60-day period of public comment, witnesses — including the accuser — can be forced to answer some questions. Contrary to much of the reporting and fact-free commentary in the Twitterverse since the proposed changes were released, the accused is prohibited from cross-examining the accuser himself; that will be left to attorneys and advisers.
Additionally, the proposed rules grant both parties “equal opportunity to inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint.”
Schools will have the freedom to decide whether they want to stick with the lower evidentiary standard of “preponderance of the evidence” or move to the higher standard of “clear and convincing” evidence. And the definitions of sexual misconduct have been tightened to conform to Supreme Court language and define sexual harassment as sexual assault, quid pro quo harassment, and “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
While some news outlets immediately chose to spin the new guidelines as a direct result of pressure from fringe men’s rights groups and conservative legal minds, the truth is that pressure has been coming from many sides. In addition to the 117 court reversals since March 2013, the American Bar Association released a report in June of 2017, unanimously endorsed by the Criminal Justice Section Council. The findings “urge the nation’s private and public colleges and universities to adopt a disciplinary system in sexual misconduct cases that includes procedural and substantive due process protections for the accused while protecting the rights and interests of the victim.”
Women’s groups, the American Civil Liberties Union (ACLU), NARAL and, stunningly, even some practicing attorneys, disagree. Democratic Party loyalists were quick to glom onto neat talking points that largely misrepresent what the new guidelines actually do — and don’t — say and blast the proposed changes as “anti-victim.” They seem to assume that DeVos has never been a victim herself.
DeVos’ predecessor, John King, known for his commitment to racial justice, weighed in on Twitter, calling the proposal “cruel” and “part of a pattern of deliberate injustices.” This is a puzzling take, considering the unintended consequences and disproportionate impact that the Obama Title IX guidance has had on innocent men of color.
Despite the preferred narrative that campus rapists are white, wealthy athletes in fraternities, the reality of who’s being adjudicated — and expelled — on college campuses looks very different. And according to Emily Yoffe, who has written extensively on the issue of campus assault for The Atlantic, the government has refused to acknowledge the role race plays in these Title IX cases. The Office of Civil Rights (OCR) is responsible for regulating how colleges respond to sexual assault. It collects a lot of data on race. But, quite astonishingly, it does not require or collect any data on the race of the accused or the accuser in sexual assault complaints. Yoffe reports that one OCR investigator acknowledged that people at the agency are aware that race is an issue in Title IX cases and are concerned that it’s “not more of a concern.”
Janet Halley, a professor at Harvard Law School and a self-described feminist, wrote in a 2015 Harvard Law Review article, “The general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.” Halley says she sees this phenomenon play out at her university: “Case after Harvard case that has come to my attention, including several in which I have played some advocacy or adjudication role, has involved black male respondents.” Yoffe concurs, asserting that black men make up only about 6 percent of college undergraduates but are vastly overrepresented in the cases she has tracked.
KC Johnson, professor of history at Brooklyn University and the City University of New York, wrote in Commentary Magazine in 2017 that the the new policies “had the greatest impact on the wrongly accused.” He cites a 2016 study from UCLA public policy professor John Villasenor that looked at only one piece of the Obama guidelines — the lowering of the evidentiary standard from “clear and convincing” to “preponderance of the evidence” — and predicted that as often as 33 percent of the time, campus Title IX tribunals would return guilty findings in cases involving innocent students.
But the wave of court reversals, outcry from the legal community, and concerns raised by feminist icon Supreme Court Justice Ruth Bader Ginsburg are not enough to convince victims’ rights advocates — or most Democratic lawmakers — that these changes are long overdue. Jesse Davidson, interim executive director of End Rape on Campus, tweeted, “If this proposed rule goes into effect, every single campus Title IX process is going to replicate what happened in the Senate Judiciary Committee against Dr. Christine Blasey Ford.”
Michigan attorney Karen Truszkowski, who is representing women in two federal lawsuits against Michigan State University, had this to say:
“I support due process for all parties as it’s done fairly. A hearing can be OK if it’s done just for fact-finding and not trying to discredit the other side. I just have a problem when you start getting defense attorneys involved.”
A licensed and practicing attorney in the Title IX space claims to support due process, but questions whether defendants deserve representation. All the more reason to celebrate that the days of adjudicating campus sexual assault cases based on this unfair — and yes, unconstitutional — standard appear to be numbered. DeVos got this one right for accusers and the accused, no matter how many times the ACLU tries to convince us that due process and support for survivors can’t coexist.