Betsy DeVos

Expert: Title IX Guidance Exists to Deprive Accused Male Students of Fair Hearings

Why Betsy DeVos should do something about campus sexual assault and the Office for Civil Rights.


Tom Williams/CQ Roll Call/Newscom

Defenders of the Education Department's Title IX dictates usually insist that the point of the law is to provide female students equal access to education. Because the campus sexual assault epidemic had effectively denied women this opportunity, it was necessary for the federal government to step up Title IX enforcement, activists say.

But now and then, the mask slips.

Consider this interview with Andrew Morse, a director for policy and research at NASPA and consultant on higher education compliance issues. The interview is somewhat aimless, but the underlying point seems to be this: campus sexual assault policies in the states vary wildly, which could become an issue if Betsy DeVos becomes Education Secretary and reins in the Office for Civil Rights, the agency responsible for enforcing Title IX.

To recap, here is the full text of Title IX: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

With that in mind, consider some rather stunning admissions from Morse, an expert on governmental anti-sexual assault policy who is asked here to defend extra-legal, university-based adjudication systems for sexual crimes. I have bolded the most relevant passages:

And so, the aims of the court system are completely different than those of the campus-conduct system. A finding of responsibility on the part of the assailant in a campus-conduct system might mean that they are removed from the campus. It doesn't mean that they're going to prison, and it doesn't also prevent that individual from seeking further study elsewhere after a period of time, perhaps.

But the point about the need for federal law and regulation that is trauma-informed and fair is that it can protect the rights to all parties involved in the adjudication process following a claim. … The lower threshold as articulated in guidance in 2011 by the Office for Civil Rights provides the foundation for a likely outcome of responsibility that will protect survivors of sexual violence while still not prohibiting the individual found responsible for seeking educational opportunities later. The point of campus-adjudication processes is to affirm the rights of individuals to educational opportunities. And the reason we need federal laws and regulations to protect that structure, is that absent federal law and regulation, there isn't an established process to do that across the states.

The notion that OCR's current interpretation of Title IX—which requires universities to adjudicate sexual misconduct under a preponderance of the evidence standard—does not significantly harm the accused students' educational opportunities is ludicrous. A student found responsible for sexual misconduct and expelled from campus may not be headed to jail, but he will face any number of serious social consequences, including significant difficulties in finding a new school that will take him.

Of course, this is an explicit goal of Title IX activists, many of whom favor laws that would require colleges to make a note on an accused student's transcript that he was involved in a sexual misconduct matter. The idea that accused students shouldn't be able to simply move on to another school is foundational to the victims' rights movement.

But Morse's most telling statement is this: "The lower threshold as articulated in guidance in 2011 by the Office for Civil Rights provides the foundation for a likely outcome of responsibility." It's not about finding the truth, or administering justice. The purpose of the guidance is to make it more likely that accused students are found responsible, whether or not they have done anything wrong. OCR has tipped the scales in favor of alleged victims, because the lives of the accused matter less than the lives of the accusers.

How's that for justice?

It is wrong to pretend that a student found responsible for sexual misconduct isn't significantly burdened by the outcome. It's downright malevolent to say that since the burden on the accused is small, biasing the process against him is not merely acceptable, but actually required under federal law.

What a spectacular misinterpretation of a law intended to foster equality between the sexes in education. We can't be sure that DeVos actually intends to reform OCR, but we should be sure that reform is necessary.

For more Title IX insanity, read this story about a male student expelled from Amherst University—even though he has some evidence his female accuser was the perpetrator.