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Betsy DeVos' Title IX Campus Reforms Advance a Liberal Cause

Progressives who oppose them are betraying their own principles

If you want to witness the creeping illiberalism of feminism, look no further than its reaction to Education Secretary Betsy Feminist Rallyfreak and gig spics via Foter.comDeVos' proposed overhaul of the Obama-era campus sexual harassment policies. Feminists are excoriating DeVos' proposed reforms as a huge step backward for women's rights. Glamour's Abby Gardner called them "alarming." National Women's Law Center's Elizabeth Tang declared that DeVos is "aiding and abetting" serial sexual predators like Larry Nassar and Jerry Sandusky.

Golly! What is DeVos suggesting that's so bad?

She basically wants to give universities space to restore some modicum of due process for those accused of sexual misconduct — be they men or women — something that progressives support in every other context.

In 2011, the Obama administration sent colleges that receive federal funds a "Dear Colleague" letter offering them "guidance" on how they should adjudicate sexual harassment cases in order to avoid running afoul of federal Title IX rules meant to prevent sexual discrimination in education. This was a crafty move that allowed the administration to have it both ways: Since it was mere guidance and not a formal mandate, it couldn't be legally challenged in court. Yet universities that didn't want to lose their federal dollars would treat it as if it were.

What's more, this was a perversion of the true purpose of the Title IX statute, which wasn't to police sexual interactions between students but to ensure non-discriminatory campuses where both genders have full and equal educational opportunities. "If some behavior isn't depriving a student of educational benefits," notes George Mason University law professor David Bernstein, "then there is no reason to hold the school liable."

Worst of all, however, was the substance of the guidance. It lowered the evidentiary standard for conviction in sexual misbehavior cases from one requiring "clear and convincing" proof to one where a mere "preponderance of evidence" would do. (In the latter, the accused can be nailed if 51 percent of the available evidence goes against them in contrast to the former where 75 percent of it must be.) Also, the Obama administration wouldn't allow the accused to see — much less cross-examine and refute — the evidence against them, unless the accusers were afforded the same opportunity. (And forget about live hearings.) This is akin to convicting and deporting aliens suspected of terrorism by using secret evidence in Star Chambers, something that liberals have vehemently — and rightly — opposed.

The Obama administration also encouraged a "single investigator model" where universities appointed one staffer to gather and weigh the evidence and render a verdict without any impartial oversight. As if all this wasn't bad enough, the rules required universities to investigate all sexual misbehavior, big and small, even unwanted remarks or passes, not just actual assault or coercion. And universities were duty bound to follow up anytime any official got wind of something untoward, regardless of whether it occurred on campus or off or under circumstances that a university could control or not.

The upshot, predictably, has been a spate of wrongful convictions — especially of innocent minority men involved in inter-racial encounters when a woman developed qualms after the fact, as The Atlantic's Emily Yoffe has documented. In one incident that Yoffe describes, a bright, black, engineering kid at the University of Massachusetts was first suspended from the university and then permanently banned from living on campus after an encounter with a white female student that she initiated (and that did not involve actual intercourse) because she claimed that she was stoned and therefore not capable of consenting. He became so traumatized during the course of the proceedings that he lost weight and twice came down with pneumonia.

This might be a particularly egregious case but far from isolated. And this has been terrible not only for those wrongly convicted but universities themselves who've been forced by Title IX to throw these kids under the bus to keep their federal funds. Indeed, since the Obama rules went into effect, universities have faced dozens of lawsuits by unfairly targeted students and have likely paid millions in settlements. In recent months, even men have jumped in on the action and filed complaints against women who, they claim, seduced them against their will when they were too drunk to consent.

DeVos' rules would take a giant step forward to restore some sanity on campuses and return basic due process rights.

For starters, she'd get rid of the "single investigator model" and require universities to conduct proper hearings where the accused will be allowed to cross-examine the complainant — not directly (as some DeVos' opponents are falsely asserting) but through an advisor or an attorney. The complainant's sexual history will be off-limits. All of this strikes a pretty sensible balance between protecting the alleged victim from being re-traumatized by an insensitive process and the need of the accused to prove his/her innocence.

Also, under DeVos' proposed rules, universities will be held liable only when there is a "severe, pervasive, and objectively offensive" pattern of behavior or when actual assault or quid-pro-quo demands are involved, not every lewd humor or unwanted pass. This, incidentally, might help women too given that these days its not just men who enjoy sex talk. And she would require universities to act mainly when the offensive behavior occurs on campus, at college-run facilities or programs, and not, say, in a hotel in Miami over spring break. Furthermore, universities wouldn't have to jump into high-gear as soon as a student mentioned something to a resident adviser or a professor as previous rules required (which, ironically, discouraged rather than encouraged disclosure because the victims could not count on confidentiality). Instead, the student would have to file an official complaint and request a formal probe. However, in less egregious cases, if both parties agreed, they could opt for informal mediation and hammer out an agreement that preserved the interests of both — for example, the offender could agree to stay away from dorms and classes where the complainant might be.

But DeVos' truly inspired stroke is that instead of simply scrapping Obama's "preponderance of evidence" standard and replacing it with the "clear and convincing" one, she will give schools a choice to pick their own rules in sexual harassment cases. The only caveat is that they will have to apply them across the board — not use different standards for university employees and students, as some colleges currently do. If university officials have to live by the same rules, they will have to think more carefully about balancing the interests of all parties. More importantly, giving universities a choice will set up a natural experiment to sort out the policies that strike the optimal balance between protecting victims and extending due process rights depending on which ones result in more favorable court rulings and fewer settlement payoffs.

The National Center for Youth Law sued DeVos when she originally rescinded the Obama-era rules. However, now it's refusing to say whether it will file a legal challenge against her final rules. (An attorney for the organization responded to an e-mail query about its plans with a "no comment.") If it does, it'll be great. The rules are on solid legal grounds and if courts refuse to overturn them, it'll be harder for future administrations to do so too.

What's unfortunate is that feminists and their supporters have become so obsessively focused on their narrow agenda that they have lost sight of their broader principles. Yet protecting the reviled from becoming fodder for the cause du jour is what liberalism is supposed to do.

One day they'll thank DeVos for saving them from themselves.

This column originally appeared in The Week

Editor's note: This article has been clarified to better summarize the Obama administration's Title IX guidance.

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  • Vernon Depner||

    they have lost sight of their broader principles.

    Uh, no. They never had broader principles.

  • ||

    Broads and principles whaddyagonnado?

  • AlmightyJB||

    Lust for power is their only principle.

  • damikesc||

    Progressives who oppose them are betraying their own principles

    You assume they HAVE principles.

  • Enjoy Every Sandwich||

    This was a crafty move that allowed the administration to have it both ways: Since it was mere guidance and not a formal mandate, it couldn't be legally challenged in court.

    The National Center for Youth Law sued DeVos when she originally rescinded the Obama-era rules.

    So, the rules can't be challenged in court, but rescinding them can be? IANAL but how does that make sense?

  • damikesc||

    Didn't notice that...but it is a good question.

  • C. S. P. Schofield||

    It makes PERFECT sense....to a Progressive. THEIR policies should ALWAYS be challenge-proof. Their opponents are NEVER accorded similar courtesy. Why? Because they say so, and they are your BETTERS.

    The advance of civilization has always been hindered by a succession of self-nominated elites, fully convinced that they were placed on Earth by Divine Providence to tell the rest of us what to do. And what progress civilization has been able to make anyway can be measured by the degree to which the common man gets to tell such buttinskies to go climb a tree and make it stick.

    It is beyond time We the People told the Progressive Left to go climb a tree.

  • Rath||

    The old "rules" weren't officially rules. What DeVos is proposing would be actual rules.

    Her 'rescinding' the letter has already happened and there was nothing that could be done about it. The current proposed rules are an affirmative step to put rules in place as opposed to just saying 'nevermind' on a bad policy position.

  • loveconstitution1789||

    Progressives are Socialists.

    There are no "Liberals".

  • Ryan (formally HFTO)||

    I think there are plenty of classical liberals left. However, lumping them in with progressives is fine with me, as they've allowed this feelings based postmodern behavior for so long they can't even call themselves liberals anymore.

    Shame on those that let feelings surpass facts in academia

  • loveconstitution1789||

    Classical Liberals are not what 'Liberals' were. Classical Liberals were okay with slavery for blacks. Liberals were okay with slavery for all.

    'Liberals' in America were never for individual rights because they typically violated some people's rights for what they wanted. They were not John Locke Liberals.

    They were pretty much Progressives and it was always a bad call to let them hijack any name implying Liberalism or being pro-Liberty.

    I always chocked Lefties calling themselves 'Progressives' and 'Liberals' as people who could not come to terms that there are Socialists.

  • C. S. P. Schofield||

    And a Socialist is a Communist is a Fascist is a Nazi. Any differences are largely cosmetic, and the similarities have filled a lot of mass graves.

  • Ryan (formally HFTO)||

    Whipping out Shikha to own the libs... Hope has not yet left this place

  • AlmightyJB||

    Due process is an evil tool of the patriarchy. Just like their biologically male parts (except if they're a girl except if your a terf except oh nevermind)

  • Bowerick Wowbagger||

    "If university officials have to live by the same rules, they will have to think more carefully about balancing the interests of all parties"

    while very nice in theory, surely no one is naive enough to actually believe this? it rests on a false assumption that they will enforce the rules upon themselves

  • Vernon Depner||

    No, it rests on the sound assumption that they will NOT impose unreasonable rules on themselves, and so they will refrain from doing so to students in order to be in compliance.

  • damikesc||

    Except rules are always for the little guy, not the big guy.

  • Vernon Depner||

    Not always. University officials are not such Big Guys that they never lose lawsuits or get convicted of crimes. If the only legal way to preserve reasonable process for themselves in sexual misconduct cases is to grant it to students, I don't see how it benefits them to fight that.

  • C. S. P. Schofield||

    Oh, it won't benefit them....in the long run. In the short run they will grant their own protection denied common students, until such time as the Government brings them up short. Then they will whine.

    The entire Education System, Kindergarten to Post Graduate, is infested with administrative drones who deeply and passionately believe that their 'policies' can and should be considered more important than actual legislation.

    You see it in the number of schools who, despite the obvious intent of State laws to the contrary, make it as hard as possible for parents to get the school to allow children to carry epipens and asthma inhalers.

  • Cynical Asshole||

    What's unfortunate is that feminists and their supporters have become so obsessively focused on their narrow agenda that they have lost sight of their alleged broader principles.

    FTFY. I've seen no evidence that modern feminists actually have any broader principles beyond men = rapists.

  • Cynical Asshole||

    I should have read the comments first. Oh well.

  • Marshal||

    And this has been terrible not only for those wrongly convicted but universities themselves who've been forced by Title IX to throw these kids under the bus to keep their federal funds.

    This is not at all accurate. Universities have been partners with the activists appointed by Obama from the beginning. This is clear since no University resisted the letter in any meaningful way, but it has been proven since the new guidance was issued and schools are falling over themselves to Resist! changing back.

  • Sevo||

    Related:

    "Wall Street Rule for the #MeToo Era: Avoid Women at All Cost"
    [...]
    "No more dinners with female colleagues. Don't sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings.
    In fact, as a wealth adviser put it, just hiring a woman these days is "an unknown risk." What if she took something he said the wrong way?
    Across Wall Street, men are adopting controversial strategies for the #MeToo era and, in the process, making life even harder for women."
    https://www.bloomberg.com/news/articles/
    2018-12-03/a-wall-street-rule-for-the-
    metoo-era-avoid-women-at-all-cost

    Victimhood may not be a good strategy after all.

  • soldiermedic76||

    They will see no correlation and simply label these men as sexists who are using pound MeToo to further the patriarchy. Remember these are the same people who ridicule Mike Pence for the Pence Rule.

  • Vernon Depner||

    They'll just say that if you don't do anything wrong, you have nothing to worry about, because women never lie.

  • C. S. P. Schofield||

    One must remember that these are people who were too stupid to know that the 'hashtag' symbol (#) is also called the sound sign, thus making their movement about male abuse of women the "Pound Me Too" movement.

    Certainly, sweetheart. It ain't like you haven't earned it.

  • Vernon Depner||

    Billy Graham once said in a 60 Minutes interview that he had not been behind a closed door with a woman other than his wife, ever. He wanted there to be no possibility of a credible accusation of misconduct.

  • Sevo||

    Vernon Depner|12.4.18 @ 7:32PM|#
    "Billy Graham once said in a 60 Minutes interview that he had not been behind a closed door with a woman other than his wife, ever. He wanted there to be no possibility of a credible accusation of misconduct."
    Ceasar's wife.
    In 2018, I would not touch a woman other than my wife. "Huggers" are not accepted.; I do not hug.

  • IceTrey||

    Why are we worrying about due process on campus in the first place? If you're sexually assualted call the cops not the dean.

  • Vernon Depner||

    If you're actually sexually assaulted, the cops might be able to help you. If you pass out naked in your boyfriend's dorm room and then decide two months later that that was a bad idea, then the justice system is unlikely to take you seriously.

  • soldiermedic76||

    Should anyone take you seriously? What happened to the concept of personal responsibility for your actions?

  • Vernon Depner||

    According to academic feminists, only men can be responsible for sex. Women's sexual feelings and activities must be managed by men.

  • C. S. P. Schofield||

    And if that leads to the Harem, well they predicted that those awful males wanted that all along.

    *spit*

  • Vernon Depner||

    The affection the leftist academics have for Islam should not surprise anyone.

  • dangfitz||

    It's an interesting phenomena. Progressives are for Due Process in every field except this one, and are only pro-choice when it comes to reproduction (and not when it comes to just about everything else: how my paycheck gets spent, how my kids are educated, what kind of toilet I have in my house, what kind of foods I eat, how I get health care...). How does that Voltaire quote go? "Those who can make you believe absurdities, can make you commit atrocities".

  • Quo Usque Tandem||

    That is an excellent quote, thank you. I will keep it handy.

  • Ghatanathoah||

    It's because Progressives view everyone as either Oppressors or Oppressed. For the later they support Due Process, for the former they make Joe Arpaio look like Alan Dershowitz.

    Black people in poor neighborhoods are Oppressed, so we need due process, prison reform, and sentencing reform to protect them from the Oppressive police. Women are Oppressed and the men they claim raped them are Oppressors, so the progs take the opposite stance.

  • NashTiger||

    I like a Shikha article.

    Damn

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  • Trainer||

    What's unfortunate is that feminists and their supporters have become so obsessively focused on their narrow agenda that they have lost sight of their broader principles.

    No, what's unfortunate is that one person in the government can change the law so drastically with one letter that a crime accusation like rape could be given to one person at a school who is judge, jury and executioner. Schools should have no special privilege to ignore rights of the individual and anytime there is an accusation of a crime, it should be immediately turned over to police.

  • Rath||

    "In the latter, the accused can be nailed if 51 percent of the available evidence goes against them in contrast to the former where 75 percent of it must be."

    This is not true. There is no % for 'clear and convincing'. The lack of numerical calculation is deliberate, and trying to apply a number to it just reflects the ignorance of the person claiming there is one.

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