Sanity on Title IX | City Journal

Sanity on Title IX | City Journal.

by KC Johnson · September 8, 2017

Education secretary Betsy DeVos’s address this week at George Mason University has received widespread attention for her call to move beyond the “failed” Title IX policies of the Obama administration and pursue a “better way” in how colleges and universities handle sexual-assault allegations. But its real importance comes in DeVos’s ability to shift dramatically the tone of how the federal government has responded to the issue of campus sexual assault—emphasizing fairness, nuance, and due process over her predecessors’ extremist vision of the rights of the accuser.

Every procedural change that the Obama administration imposed on colleges increased the chances that a student accused of sexual assault would be found guilty. But most legislators and reporters, much less average citizens, don’t pay close attention to issues like the standard of proof or the role of cross-examination—as the administration understood. From 2011 onward, Obama, Joe Biden, and key staffers in the Department of Education crafted a consistently one-sided narrative: the nation’s college campuses were facing an epidemic of violent crime; colleges weren’t doing enough to protect the hundreds of thousands of female undergraduates who each year would be sexually assaulted; the federal government had to step in.

Neither Obama nor Biden ever mentioned the due-process rights of accused students. In a 2015 interview with the Wall Street Journal, Catherine Lhamon, the administration’s second head of the Office for Civil Rights (which had enforcement power over Title IX), called allegations that she ignored due process “appalling.” Yet nothing in her work suggested any concern with due process. Indeed, as DeVos revealed yesterday, a university president recounted that one official who worked for Lhamon asked, “Why do you care about the rights of the accused?”

DeVos’s George Mason speech represented a major shift; she mentioned the importance of “due process” ten times. The same phrase appeared in the text of the two principal Obama guidance documents only five times, combined, and then mostly to remind colleges not to allow an accused student’s due-process rights to trump OCR’s novel interpretations of Title IX. DeVos also described in fairly precise terms how campus disciplinary processes actually work, citing the many students who have gone to court to achieve due process from their schools. No Obama official ever acknowledged that the administration’s policy had generated a flood of lawsuits from accused students.

DeVos also stressed her personal revulsion for sexual assault and her commitment to prosecute campus rape. Her address used the term “survivor”—the preferred reference of campus accusers’ rights organizations—16 times. She strongly endorsed efforts by universities to provide academic and other forms of accommodations to victimized students. She even praised the Obama administration for raising the profile of campus sexual-assault survivors.

These passages make the response to the speech from leading Democrats and victims’ rights organizations seem terribly out of touch. Reason’s Robby Soave outlined each of the cases DeVos referenced in her speech; none of her political critics have challenged her on the facts about these abuses of the system. Their silence about the denial of due process leaves the impression that too many Title IX advocates believe that punishing innocent students is a price worth paying to address campus sexual assault. In this respect, the notorious 2015 comments of Colorado congressman Jared Polis (for which he later issued a half-hearted apology) can be seen as a type of “Kinsley gaffe”— wherein a politician accidentally says what he really thinks. In 2015, Polis informed a House hearing, “If there are ten people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all ten people.”

In response to DeVos’s speech, college and university presidents remain committed to upholding the one-sided Obama-era policies. Wesleyan’s Michael Roth said that the Obama guidelines had created a necessary cultural change, ending the period when “men, with impunity, would throw their weight around,” sexually harassing and assaulting women. (Roth assumed the Wesleyan presidency in 2007, four years before the Obama Title IX changes took effect. No record exists of his informing prospective Wesleyan parents at the time of the dangerous climate on his campus.) University of California system president Janet Napolitano, a former Obama cabinet official, likewise criticized DeVos for “undoing” six years of progress. Napolitano’s words might have carried more weight if her institution had tried to create fairer procedures in response to multiple due-process lawsuits from accused students. In fact, the University of California’s biggest court victory in one of these lawsuits came in a case where one judge nonetheless compared the university’s procedures with a kangaroo court.

DeVos promises to issue new regulations about how Title IX should be applied. Even on this technical issue, she exposed the radicalism of her predecessor’s policy. Former OCR head Catherine Lhamon charged that DeVos wanted to employ “essentially a popular vote,” though DeVos merely proposes to follow the requirements of a 71-year-old law, the Administrative Procedure Act, which sets procedures for agency rule-making. Lhamon’s response reflects the mindset of an administration whose officials believed that they did not need to follow the law or solicit public comment before substantively altering major policies.

In her willingness to use her position to remind the public about the importance of due process in adjudicating campus sexual-assault claims, DeVos has an extraordinary opportunity to change this one-sided debate. If she truly believes, as she said at George Mason, that “this unraveling of justice is shameful, it is wholly un-American, and it is anathema to the system of self-governance to which our Founders pledged their lives over 240 years ago,” then she should continue to speak out on this matter.

KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center.

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