Title IX

UPDATED: Betsy DeVos Isn't "Enabling Rape Deniers" by Pushing for Due Process on College Campuses

As Columbia University settles a case with a student found innocent of sexual assault, the Secretary of Education is rolling back a bad Obama-era policy.

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Gage Skidmore, Wikimedia

Scroll to bottom for an update.

Have you heard that Education Secretary Betsy DeVos is "enabling rape deniers?" That's according to Jessica Valenti in The Guardian:

Campus rape victims have long been treated abysmally in the United States. They're often disbelieved by peers, administrators and school adjudicators, shamed by campus police, or watch as their attackers go unpunished.

Women tell stories of their accused rapists even academically flourishing as they themselves fail classes or drop out to avoid seeing their attacker. Under the Obama administration, that tide started to turn. We started to talk about Yes Means Yes initiatives and teach enthusiastic consent. There was a national conversation about how to best serve students who need our help.

We all know that the Trump administration and appointees are eager to undo Obama's work – but it shouldn't come at the expense of rape victims, and of justice.

That's not quite right.

DeVos is actually bringing something approaching due process back to college campuses. Specifically, she is working to roll back a bad Obama-era policy. In 2011, the Department of Education's Office of Civil Rights (OCR) sent out a "Dear Colleague" letter to colleges and universities urging them to adopt a new, lower standard of guilt when it came to adjudicating sexual assault and misconduct charges under Title IX, the federal law barring discrimination by sex in education.

At Reason, Cathy Young explained how the new standard worked in a particular case at the University of North Dakota:

[The student] was found guilty under a "preponderance of the evidence" standard of proof—the lowest standard, under which a defendant is guilty if the disciplinary panel believes it is even slightly more likely than not that he committed the offense. Traditionally, most colleges have adjudicated charges of misconduct against students under the higher standard of "clear and convincing evidence"—less stringent than "beyond a reasonable doubt," but nonetheless requiring an extremely strong probability of guilt.

A few months ago, the Office for Civil Rights of the Department of Education undertook to change that. On April 4, the OCR sent out a letter to colleges and universities on the proper handling of sexual assault and sexual harassment reports. One of its key recommendations was to adopt the "preponderance of the evidence" standard in judging such complaints.

The OCR's letter is not technically binding, but its recommendations have been implemented widely since public and private colleges that receive federal funds (read: all of them) are afraid that their support might be yanked. The result has been an explosion in the number of stories in which students, administrators, and faculty find themselves brought before a tribunal that not only requires a much-lower burden of proof than in a trial but routinely denies anything like due process and legal representation to the accused. In one emblematic and disturbing case, Northwestern Professor Laura Kipnis endured a bizarre on-campus Title IX hearing after publishing an article about her sexual exploits as a graduate student. A feminist and political progressive, Kipnis' experience led her to publish a book, Unwanted Advances, about how OCR's guidelines have given rise to what she calls "sexual paranoia" in higher education.

Columbia Spectator, YouTube

Secretary of Education Betsy DeVos is now calling for OCR to return "to its role as a neutral, impartial, investigative agency…[because it] had descended into a pattern of overreaching, of setting out to punish and embarrass institutions rather than work with them to correct civil rights violations and of ignoring public input prior to issuing new rules." That is, she will allow colleges to use a higher level of proof before finding someone guilty of a crime or offense. That's not "enabling" sexual predation or excusing misbehavior, it's making a flawed system better. There is no conflict between due process and treating victims of sexual assault with the care and consideration they deserve.

DeVos's change may also encourage colleges to avoid lawsuits like the one just settled by Columbia University. Paul Nungesser was accused of raping fellow student Emma Sulkowicz but cleared by all investigations. As a protest and officially approved art project, Sulkowicz carried the mattress upon which she claimed she was assaulted around campus for the remainder of her time at school (both she and Nungesser graduated in 2015). Nungesser ultimately sued Columbia for allowing and encouraging harassment of him after being found guilty (his lawyer told the Washington Examiner, "Columbia University, as an institution, was not only silent, but actively and knowingly supported attacks on Paul Nungesser, after having determined his innocence, legitimizing a fiction."). The terms of the settlment are private. Only in an atmosphere of "sexual paranoia," fueled in large part by the guidelines DeVos is rolling back, would a university have acted in such a way.

Earlier this year, I interviewed Laura Kipnis for Reason. Watch below and go here for a full transcript.

Update (3.30 P.M.): Ryan Compaan points me to this recent and excellent Chicago Tribune editorial about Betsy DeVos and the investigation of campus assaults. The piece discusses the "Dear Colleague" letter and its effects and closes with a sound policy prescription:

Civil authorities, who have no agenda to protect a school or to shortchange an alleged victim or perpetrator, still are best suited to mete out justice.

[C]ollege administrators [should] swiftly hand allegations of rape and other sex crimes to the people best qualified to deal with them — local cops and prosecutors.

We hope DeVos makes that a top priority. One option would be this rewrite of the 2011 letter:

Dear Colleague,

Someone reports a campus sexual assault? Call the cops.

NEXT: Obamacare Repeal, R.I.P.

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  1. There’s nothing wrong with “rape denial” if the rape didn’t happen.

    1. There’s nothing wrong with “rape denial” if the rape didn’t happen.

      Bordering on actual rape denial, there’s nothing wrong with a rape denial even if it did happen. A good percentage of these cases both parties are so hammered that it’s not clear sex even actually occurred. If a tree falls in the woods… penis falls into a vagina and no one’s conscious enough to remember it, was it rape?

      I wonder what percentage of fist fights get reported to police?

      1. “there’s nothing wrong with a rape denial even if it did happen”

        The rest of your comment doesn’t seem to describe rape.

        The article describes rape denial as being a systemic action by more than just the rapist.

        So, using that definition, there is something wrong with rape denial (if it did happen) .

        1. Not to get too epistemological, but;

          The rest of your comment doesn’t seem to describe rape.

          Denier!

          Your stance fundamentally doesn’t make sense. Nothing in my statement is proscribed to the individual(s) or rapist. The tree falling in the woods “koan” is targeted at pretty much everyone who wasn’t there to hear it, not just the speaker.

          If the rape/consent and harm/no harm states can’t be known, then any notion of rape denial or advocacy is a farce, any declarations of right/wrong thereof are also farcical.

          So, using that definition, there is something wrong with rape denial (if it did happen) .

          This would suggest that a system consistently (not necessarily universally) denying rape claims is inherently wrong without regard for (or even in spite of) any evidence or even any actual rape. That is to say, people weren’t around to hear the tree fall in the woods so there must be something wrong with their hearing.

          If we don’t share a definition of rape, then we presumably don’t share a definition of rape denial. If we don’t share either one of those, then I don’t know that rape denial, systemic or not, is bad.

          1. Are you willing to take this to its logical conclusion and argue that this type of argument can never be resolved and that all disagreements are simply difference in word usage?

            Are you willing to BECOME WITTGENSTEIN?

            1. You mean go full Wittgenstein?

              Never go full Wittgenstein!

              Actually, it’s not that bad to go full Wittgenstein, just never go full Derrida.

  2. Is that a mattress on your back or are you just glad to see me?

    1. The sickest thing is she parlaid her art project into a book deal for a new fad exercise regime. “Sawing ZZZs”

  3. someone from trump administration. must rage. rage.

    1. This. If this were some parallel universe where Hillary Clinton wasn’t a batshit crazy cunt and had won the election, she could have done the exact thing and there wouldn’t have been a peep from the progressive left.

      Principals > Principles

      1. She could have done exactly the same thing….but she wouldn’t have. And Shrillary isn’t batshit crazy. Arrogant, yes. Lazy, yes. Completely without ethical or moral compass, yes.

        Now, Elizabeth Warren? SHE’S Batshit crazy. Nancy “I’ve had so much plastic surgery I’m no longer biodegradable” Pelosi? Also batshit.

        Shrillary? She isn’t INTERESTING ENOUGH to be batshit.

  4. Nungesser ultimately sued Columbia for allowing and encouraging harassment of him after being found guilty

    Should that be not guilty?

    1. Yes. It is kind of an important fact, too.

      1. Okay. That’s what I derived from the context, so thought I’d call it out.

    2. I was going to point out the same thing.

    3. Erroneously found guilty by a jury of kangaroos.

      1. When will the world unite and finally revoke all claims of humanity to everyone on the continent of Australia?

  5. Why are schools involved at all? If a student is raped they should go to the police. If a student is arrested for it they should be suspended. If they are convicted they are expelled. It’s not that difficult.

    1. Because of the lower requirement of guilt I presume. A full blown criminal investigation is harder than the University’s.

      1. by several orders of magnitude.

    2. If I’m a student at a school, and you suspend me for an arrest, I’m suing you.

      I don’t know when that stupidity got normalized, but it needs to stop.

      1. If I’m a student at a school, and you suspend me for an arrest, I’m suing you.

        Yeah, I’d go so far as to say the arrest is the punishment.

        Didn’t finish you thesis because you got arrested for rape allegations? This seems like a teaching moment.

    3. But your way there’s no way to ruin the life of any male student accused of rape because of a drunken hook-up “he said, she said” scenario. They’re not interested in actual justice here, just punishing young men for being interested in having sex with womyn.

    4. Why are schools involved at all?

      because Title IX mandates it (according to the ‘Dear Colleague’ letter)?

      have you not actually read any of the stories?

  6. But in addition to meeting with groups dedicated to eradicating sexual assault at universities, the education secretary will also talk with dangerous anti-feminist groups that claim rape statistics are overblown and that women regularly lie about assault.

    Differing viewpoints scare me too.

    1. I know that’s why I only read Reason.

    2. dangerous anti-feminist

      I guess she must not realize that this makes “anti-feminists” sound a lot cooler than the typical stereotypes involving a trillby and living in mom’s basement.

      1. Devos will be removed from office when they discovered frequent meetings with anti-feminist groups was code for shitposting on /pol/.

  7. Most importantly, I hope the Valentis of this word continue to hitch their cause to the backs of people like Sulkowicz, because the more attention EmSu receives, the worse Valenti looks.

  8. The population needs the assurance that wrongdoers will be punished. You are not taking rape seriously as an offence if you allow the posiibility of someone accused of rape can beat the charges.

    This was how StarTrek: Deep Space 9 described the Cardassian approach to justice. It amazes me to no end to find American Progressives embracing such star chamber justice twebty years later.

  9. NEVER FORGET: Matt Welch and God knows who else at reason thought Hitlery Kkklinton was “less bad” than TRUMP.

    1. If both Welch AND God thought it maybe there is something to it.

      1. Well, God made Hitler so…

        1. You know who else made Hitler?

            1. Don’t patronize me, I know who Vandal Savage is you plebian.

          1. von Hindenburg?

    2. Hitlery Kkklinton

      ehh, needs work. How about Hitlery Cankleton?

      1. Hillary Cliton.

    3. Election’s over, dude.

  10. shouldn’t come at the expense of rape victims, and of justice.

    Due process, shmoo process.

    1. Look, sometimes you have to make up for the possibility of actual perpetrators having gotten off the hook by punishing a bunch of innocent people. It’s only fair.

      1. Seems a good time for:

        “It is better that ten guilty persons escape, than that one innocent suffer.”

        1. Sure, as long as you take into account that guilt is based more on the relative skin colors, genital configuration, and sexual preference of both victim and accused than it is on the facts of the case at hand.

        2. “It’s okay to arrest some innocent people as long as it all averages out in the end”- Francis Bacon

          1. The Rule of Law of Averages.

        3. Depends on what those guilty people are doing.

  11. At Reason, Cathy Young explained how the new standard worked in a particular case at the University of North Dakota

    Yeah, but she’s just a Russian spy hack fake news JournoLister so who cares what she has to say.

  12. If students expected to be treated like customers then this wouldn’t be an issue in the first place.

    Agitate for something like student free agency, where your grades and class results belong to you because you paid for them, and you can pick up and leave any time you like for any reason, and this crap will definitively stop.

  13. What exactly is a Jessica Valenti and why does anyone need to care about what she has to say about anything?

    1. You obviously do not have a journalism degree from Columbia, so i literally can’t even.

      1. No way. I thought they banned everyone without a Columbia degree?

        1. It’s part of the occupational licensing craze that’s sweeping the nation.

      2. #6 huh?

        We want information. Information. Information.

        1. He’s number 6 on the list of BEST F*CKS EVAH! And he is damn right to be proud.

  14. Why is Jessica Valenti a Due Process Denier?

  15. I wonder who amongst the Hillary lovers here at Reason will admit that DeVos was a great Trump nominee?

    1. The immense hatred of her from the left is really both astonishing and confusing. From the beginning, they have hated her and gone out of their way to oppose everything she says far more than they do for Sessions, who is by far the worst part of Trump’s presidency. If not for Sessions, I would actually quite like this administration so far.

  16. It is worse than a preponderance of evidence standard as the male is not allowed to enter ANY evidence and in a “he said-she said” the she is automatically believed, even if the allegations occurs days later (regret). http://ncfm.org/

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