by Jason Willick · September 8, 2017
In an address at George Mason University Law School yesterday, Secretary of Education Betsy DeVos issued a blistering indictment of the state of campus sexual assault tribunals. In the course of its well-meaning efforts to combat sexual assault on campus, she said, the Obama Administration had overreached and “weaponized Title IX,” forcing campuses to adopt overly broad definitions of sexual misconduct and arbitrary and unfair “kangaroo court” processes that doesn’t serve the interests of victims or the accused.
DeVos’ initiative to review the federal government’s Title IX regulations is a welcome step forward. In all likelihood, the Department of Education will emerge with a more balanced and less ideological set of guidelines for how colleges should handle accusations of sexual misconduct. But this might not have as much of an effect on the ground as its proponents hope and its opponents fear.
First, because this is a highly polarized culture war issue, colleges know the pendulum could swing again the next time a Democratic president staffs the Education Department. It may be a year or more before DeVos’ rulemaking process is completed and the new regulations are sent out, and many college administrators may choose to drag their feet with the implementation as they see how the political winds are blowing. A President Kamala Harris, for example, would be likely to re-install left-wing bureaucrats who, once in power, would bring down the hammer on colleges that had stepped back from their Obama-era policies.
Second, there is nowhere in American life (except perhaps at Hollywood awards ceremonies) where Donald Trump is viewed as more illegitimate than in academia. Any regulations emanating from his executive branch will automatically be viewed with suspicion and resistance. This is especially (and perhaps understandably) so with regulations relating to sexual misconduct, given that the President himself has been accused of repeatedly assaulting women. So while colleges willingly complied with the Obama Administration’s guidance, they may look for legal and bureaucratic means to block or soft-pedal DeVos’.
Third, the dynamics of campus politics make it difficult for administrators to roll back the excesses of the “sex bureaucracy” that has grown exponentially in recent years. Emily Yoffe reported in the Atlantic that “Harvard now has 55 Title IX coordinators.” There will be institutional pressure to keep them; any college president who tried to roll back such a system knows that he would face backlash and protests.
To be sure, DeVos’ new approach will take some of the pressure off of colleges to create even more draconian policies. PR-conscious administrators may be less likely to fear federal investigations and might therefore be less likely to overreact by punishing students who aren’t guilty. But it’s also likely, given all of the dynamics outlined above, that a significant portion of the new campus policies will stay. Insofar as Obama’s initiative did stop campus administrators from sweeping legitimate sexual assault charges under the rug, this is a good thing. But insofar as academia has created its own parallel justice system that really has in many cases abandoned fundamental ideas of fairness, it’s not.
The way to move closer to a lasting solution to the problem is for Congress to pass legislation clarifying the scope and limits of Title IX. Congress has the power to do more to address sexual assault than the Department of Education does on its own, and its legislation would carry more force than rules that would swing back and forth with each new administration. But Congress’ plate is rather full at the moment, so we shouldn’t expect this kind of effort anytime soon.