by Mark Joseph Stern · September 11, 2017
Education Secretary Betsy DeVos makes remarks during a major policy address on Title IX enforcement at George Mason University in Virginia on Thursday.
Betsy DeVos is not especially qualified to perform any aspect of her job. The secretary of education got her current gig by donating oodles of cash to Republicans, including many of the senators who voted to confirm her. Her tenure thus far has been a calamity. In her first month on the job, she revoked protections for transgender schoolchildren and praised America’s segregated education system. After those early mishaps, DeVos largely retreated from the public eye and has allowed her agency to drift into aimless irrelevance.
Last Thursday, however, DeVos roared back into the spotlight with a trenchant speech promising to overhaul federal rules regarding campus sexual assault. Most progressives understandably rolled their eyes: Given DeVos’ glaring inadequacies, it may be difficult to imagine she will approach this topic in good faith or make genuine improvements to the current rules. While this cynicism is perfectly rational, the reality is that our current system is so terrible that DeVos probably can’t make it much worse. She may be an unqualified oligarch, but liberals should hear out her proposals before dismissing them out of hand.
DeVos’ Thursday speech focused on a federal law, Title IX, which prohibits schools that receive federal funding from discriminating on the basis of sex. Sexual abuse and harassment qualify as sex discrimination, and universities that fail to properly prevent and address sexual violence may lose their funding or be sued by victims. In 1997, the Department of Education’s Office for Civil Rights promulgated guidelines explaining how universities should evaluate and respond to sexual harassment on campus. These instructions included a broad outline of “prompt and equitable grievance procedures” that institutions should use when students report sexual abuse.
In 2011, OCR issued a “Dear Colleague” letter laying out more specific rules for campus sexual assault investigations. The OCR letter asserted that universities must use a “preponderance of the evidence” standard to evaluate guilt, meaning the accused must be disciplined if a fact-finder is 51 percent certain he is guilty. The letter also stated that schools should allow a student to appeal if her alleged abuser is found not guilty. Moreover, OCR discouraged schools from allowing the accused to cross-examine accusers because this experience “may be traumatic or intimidating” to the alleged victim. Finally, the letter clarified that schools can forbid the accused from using a lawyer throughout the Title IX process.
OCR later claimed that this guidance letter merely “reminded” schools of their Title IX obligations. In reality, however, it imposed stringent new requirements upon schools and sharply limited the rights of the accused. Universities quickly adopted the letter’s procedures, often to disastrous effect. DeVos detailed some of the most egregious injustices in her Thursday speech, while a recent article by the Atlantic’s Emily Yoffe details how universities’ Title IX hearings have become kangaroo courts. And Laura Kipnis’ new book Unwanted Advances vividly illustrates how students can use current Title IX rules to retaliate against innocent professors.
The core problem with Title IX, as interpreted by the OCR in 2011, is that it strips any semblance of due process from the accused. In criminal proceedings, due process encompasses the right to an attorney, the right to cross-examine accusers and witnesses, protections against double jeopardy, and the presumption of innocence. The 2011 letter jettisoned these safeguards because disciplinary proceedings are not criminal; the most a school can do is expel a student. But expulsion is a serious penalty that interrupts students’ lives, tarnishes their academic record, and diminishes their future job opportunities. And the Constitution does afford at least some due process protections for public university students. Shouldn’t Title IX procedures ensure that students and professors accused of sexual misconduct are given a real opportunity to defend themselves?
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A concern for due process is not an inherently partisan issue, and it’s not just conservatives who have objected to the new regime. A number professors from top law schools have urged OCR to revise Title IX rules. Liberal law faculty have also exhorted their schools to reintroduce fairness into disciplinary proceedings. On Friday, feminist law professor and Slate contributor Lara Bazelon cautiously praised DeVos’ effort to “get it right,” and Harvard Law’s Jeannie Suk Gersen, also a liberal feminist, lauded her for “proceeding exactly as an agency head should.” Both writers offer some eminently reasonable reforms: Raise the standard of proof to “clear and convincing evidence”; allow cross-examination of witnesses; provide the accused with an advocate; and create an independent appellate process. These should not be objectionable proposals.
But for the broader American left, the deck is already stacked against DeVos—and for good reason. The president who appointed her has bragged about committing sexual assault, and DeVos herself has met with “men’s rights activists” who dismiss claims of sexual abuse. More troublingly, Candice Jackson, the acting head of OCR, has claimed that “90 percent” of campus rape accusations “fall into the category” of “we were both drunk” and “she just decided that our last sleeping together was not quite right.” Jackson quickly apologized, but her comment indicated an unjustified skepticism toward assault victims that could infect the office’s investigations.
So, no, DeVos and her staffers are not the people whom progressives would choose to rewrite Title IX rules. But the fact remains that the current regime is broken and that DeVos has an opportunity to fix it. Liberals have plenty of reasons to distrust her, but they shouldn’t reject her stab at reform without hearing what she has to offer. Nor should they bemoan the demise of the 2011 guidelines. Those rules deserved to die. It’s just unfortunate that DeVos has to be the one to kill them.