News leaked Wednesday that the Education Department plans to bring campus sexual misconduct policies in line with basic principles of fairness and due process, and many progressive feminists are fuming.
But these criticisms of Education Secretary Betsy DeVos are hard to take seriously, since so many of them contain very basic errors about the administration's revised guidance relating to Title IX, the federal statute that mandates sex and gender equality in education.
As reported earlier by The New York Times, and confirmed independently by Reason, the Education Department plans to abandon several controversial Obama-era policies that deprived accused students of the ability to meaningfully defend themselves in sexual misconduct disputes. DeVos would no longer force colleges to adjudicate all accusations of which they become aware, permit more flexibility, mandate cross-examination during hearings, and adopt a definition of sexual harassment in line with Supreme Court precedent.
The new guidance is still in draft mode, and will have to undergo a period of public notice and comment before it takes effect. If adopted, the proposals "will go a long way towards restoring meaningful due process protections to the campus justice system, to the ultimate benefit of students—both accuser and accused," according to the Foundation for Individual Rights in Education's Robert Shibley.
The Mary Sue's Chelsea Steiner disagrees:
DeVos's proposed plan involves a new Supreme Court definition of sexual misconduct, which the Obama administration defined as "unwelcome conduct of a sexual nature," as well as "unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature." DeVos's proposal defines sexual harassment as "unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school's education program or activity." So don't worry, students; unless a lecherous professor is literally blocking the door of his classroom with his boner, you've got nothing to complain about.
Of course, conduct that falls well short of what Steiner describes above could still violate Title IX under DeVos's new rules. The previous definition, however—"unwelcome conduct of a sexual nature"—was simply too broad, and imperiled speech that is obviously protected under the First Amendment, like giving a wrong answer on a quiz, or making a joke, or using a gendered salutation.
Yahoo's Elise Sole claims that the new rules force schools to adopt a higher burden of proof than "more likely than not," which was the Obama-era standard. But schools will actually be able to choose between the preponderance-of-the-evidence standard and the clear-and-convincing standard, an Education Department official with knowledge of the proposal told me.
DeVos is restoring a measure of flexibility to aspects of the process that could benefit from diversity of approaches. One of those approaches is informal mediation, something Sole implies—and Steiner explicitly asserts—is bad. "The Obama administration strongly discouraged private mediation and personal questioning, calling it 'traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment,'" wrote Steiner.
But if all parties to a dispute—the accuser, the accused, and school officials—would rather handle the matter internally and find a mutually-agreed-upon solution that side-steps an adversarial adjudication process, what's so wrong with that? Schools shouldn't be forbidden from exploring restorative justice options in cases where the relevant students or professors would prefer to do so.
The Cut's Lisa Ryan complains that "schools will also only be responsible for investigating alleged misconduct that has been reported to have taken place on their campuses or in their programs—and not incidents that occurred off-campus (such as the case of former Stanford student Brock Turner, who was convicted of raping a woman off-campus)." But the outcome of the Turner case—jail time for a guilty perpetrator—demonstrates precisely why it's generally better to leave serious accusations of sexual assault to the plain-old criminal justice system. In any case, universities will still be responsible for adjudicating sexual misconduct at official university events.
This is an important step in the right direction, because Title IX has occasionally been used to bring sexual misconduct charges against students who were involved in disputes that really didn't concern the school at all, like this University of Southern California case involving a male student found responsible for violating Title IX because he didn't intervene when another male—a non-student—slapped a girl's butt.
These and other critics of the new rules seem upset that campuses will no longer be required to initiate Title IX proceedings unless a complaint is filed. But I've seen too many examples of universities initiating Title IX investigations even when the purported victim of sexual misconduct had not complained and was on perfectly good terms with the alleged accuser to think this is anything other than common sense.
And then there's Jess Davidson, executive director of End Rape on Campus, who told the Today Show's Kate Snow that the new rules "will absolutely prevent survivors from coming forward." Of course, nothing in the proposed rules prevents alleged victims from coming forward. The guidance would simply obligates colleges to make resources available to the accused so that they can defend themselves in accordance with principles of basic fairness.
None of this is to suggest that the new policies are perfect. I have some questions about how cross-examination, an important component of the revisions, will work in practice. But the idea that a person accused of sexual misconduct deserves some opportunity to scrutinize his accuser's claims, or at the very least compel an administrator to do so, shouldn't be seen as wildly controversial.
If universities are going to be in the business of policing sexual assault—and there's still good reason to ask whether they should be, regardless of whether the Education Department levels the playing field—then they have to follow a process that works for the accusers and the accused. Believe the victims may be a fine answer to the cultural problems highlighted by the #MeToo movement, but it's not a standard of justice.