MENU

Reason.com

Free Minds & Free Markets

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.

DevosTom Williams/CQ Roll Call/NewscomDefenders 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.

Photo Credit: Tom Williams/CQ Roll Call/Newscom

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    So the accuser's educational prospects are limited by an alleged assault, but the accused educational opportunities are not limited by the accusation? Fuckin-a.

  • Cynical Asshole||

    Yes. Because... something about "male privilege."

  • ant1sthenes||

    Men aren't people-people.

  • The Fusionist||

    "...now and then, the mask slips....stunning admissions...ludicrous....It's not about finding the truth, or administering justice....downright malevolent ...spectacular misinterpretation..."

    Who are you, and what did you do with Robby Soave?

  • bacon-magic||

    You leave Robby alone!*best drama-queen voice

  • BigW||

    I know!! Another Robby article with very few um yeahs or well buts...

  • Password: pode$ta||

    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.

    This. Is. Not. How. Justice. Works.

    You don't hedge both ways. They're basically saying "We presume guilt, but try to make things as easy on the presumedly guilty party as possible."

    That is so insanely stupid, it is hard to fathom.

    Prove a man guilty. Then make it hard on him. If he is not found guilty, do everything reasonably possible to make sure the false accusation has zero impact on his life and allow for recourse against the accuser.

    There is a reason the legal system is set up the way it is. Common law practices have evolved over hundreds of years to make as much sense as possible while still delivering the appropriate outcome as frequently as possible. You cannot just reinvent the whole damned thing overnight, especially with people as stupid as university admins doing most of the inventing.

  • Calidissident||

    "If he is not found guilty, do everything reasonably possible to make sure the false accusation has zero impact on his life and allow for recourse against the accuser."

    Just wanted to point out that not guilty does not equal false accusation. Our system is supposed to be built on the notion of presumed innocence and proving guilt beyond a reasonable doubt. Part of that means that guilty people will sometimes be found not guilty.

    But I agree that the current policy is kind of baffling. If the accused party really is a rapist, sending them off to another campus doesn't have any net benefit for public safety.

  • kbolino||

    I think the end goal is not to send them off to another campus, but to ban them from every campus entirely. We're not there yet but I see it coming on the horizon (even if DoEd is given a leash for a 4-8 years, it will come later).

  • Password: pode$ta||

    Just wanted to point out that not guilty does not equal false accusation.

    Yeah. Allowing for recourse is a completely separate step, with its own process.

  • Cynical Asshole||

    Our system is supposed to be built on the notion of presumed innocence and proving guilt beyond a reasonable doubt. Part of that means that guilty people will sometimes be found not guilty.

    This. There's a reason they call it "not guilty" and not "innocent."

    But I agree that the current policy is kind of baffling. If the accused party really is a rapist, sending them off to another campus doesn't have any net benefit for public safety.

    Yes, but "not my problem anymore" is music to a university admin's ears.

  • Nunya||

    Exactly. Not my problem anymore and I get to feel like I did something for the not actually oppressed.

  • Diane Reynolds (Paul.)||

    That is so insanely stupid, it is hard to fathom.

    And it's exactly the kind of thing that won Obama the description of being so highly intelligent!

  • R C Dean||

    You cannot just reinvent the whole damned thing overnight,

    Well, when our ancestors were all subnormal bigots, and the current generation is by far the smartest and best informed in history, you kind of have to reinvent everything.

  • ||

    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.

    Translation:

    "The reason we need federal law and regulations is that absent federal law and regulation, there isn't federal law and regulation."

  • Ted S.||

    Absent federal law and regulation, some states may do things in a way we don't like.

  • kbolino||

    Lawyering is hard and shit. It's so much easier to follow orders. Spoonfeed us the interpretation, oh Gods of Law, that we may smite our enemies with its uniform righteousness!

  • ||

    The office of civil rights was commandeered by Obama to deprive students of their civil rights. This should surprise no one. Obama was the most hostile to civil rights president in at least a generation.

  • The Fusionist||

    The worst until Trump, who will soon issue a proclamation so it will be like that movie where everyone can kill, rob and rape with impunity for one night.

  • The Fusionist||

    The Purge, that's the movie.

  • R C Dean||

    Fusionist, you haven't gotten your Trumpstapo kill list yet? Mine arrived last week.

  • The Fusionist||

    Wait, if I didn't *get* the list, then...uh oh...

  • ||

    You are right Eddie, but Suderman said it first.

  • PBR Streetgang||

    "The office of civil rights was commandeered by Obama to deprive *MALE* students of their civil rights".
    More accurate?

  • ||

    "When you are thinking about how much power the government should have imagine that power in the hands of the most depraved person possible because sooner or later that power will be in the hands of the most depraved person possible."

    -My wife.

  • LarryA||

    Males first, then women, then all the other genders.

    Robespierre's Law: The power you give government to do unto others will be used to do unto you.

    A great part of the recent wailing and gnashing of teeth is that the U.S. wasn't ever supposed to have a Republican president with the powers granted the recent Democratic one.

  • Hamster of Doom||

    How's that for justice?


    Backlash.

    Power keeps swinging. The pattern seems to be a dominant group establishes the norm, accretes power, abuses it by being assholes once they get enough power, people get fed up with all these assholes everywhere, the assholes lose favor, and some other group grows to dominance. Often a group treated badly by the previous dominant assholes. Other group establishes a norm, accretes power, abuses it by being assholes once they get enough power...

    *Recycling comments, because efficiency.

  • $park¥ is totally a Swifty||

    efficiency

    The happy word for laziness.

  • Hamster of Doom||

    Having a large vocabulary provides for flexibility in presentation.

  • Ted S.||

    We can't be sure that DeVos actually intends to reform OCR,

    Ah! There's the Robby we know and love!

  • R C Dean||

    I guess the ESP that Reason writers regularly deploy to inform us of the unspoken motivations or intentions of politicians was on the fritz.

  • SugarFree||

    Wait, are we sure of that? Has DeVos or even Trump said they were going to reform the OCR, or--better yet--abolish it?

  • ||

    I think there was some mention of it. I cant remember when or who because it was only once without a lot of emphasis, but yes. I had the impression at the time that her stance on that was one of the reasons Trump chose her.

  • Robby Soave||

    That's true, though. She hasn't commented on the issue all that much. It's not like Christina Hoff Sommers is being appointed Education Secretary. We don't know how committed DeVos is to reforming Title IX.

  • R C Dean||

    She did a masterfully greasy job of evading the question when asked:

    Casey: "I ask you, would you uphold that 2011 Title IX guidance as it relates to sexual assault on campus?"

    DeVos: "Senator, I know that there's a lot of conflicting ideas and opinions around that guidance, and if confirmed I would look forward to working with you and your colleagues and understand the range of opinions and understand the issues from the higher ed institutions that are charged with resolving these and addressing them. And I would look forward to working together to find some resolutions."

    Casey: "I agree with the guidance. So I'm just asking for a yes or no. I guess you're not going to give me a yes or no answer on committing to upholding that guidance."

    DeVos: "It would be premature for me to do that today."

    http://www.washingtonpost.com/.....2814f99a6e

  • ||

    While they would have hated Sommers at least she isn't rich (which they hate) and have associations with (though little direct involvement with) groups hostile to gay rights.

  • ||

    Oops, premature post. Most importantly, Sommers also has academic credentials

  • Pro Libertate||

    Due process. . .is due.

  • Rich||

    DeVos should do something about campus sexual assault

    Declare it a matter for the local police?

  • Billy Bones||

    "OCR has tipped the scales in favor of alleged victims, because the lives of the accused matter less than the lives of the accusers."

    I know I am thinking logically about a government dictate, but reading that one sentence of Title IX, are not each of these Universities breaking the Title IX law by not giving equal treatment of sexes during these hearings?

    "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."

    If a male student is not allowed to defend himself, but the female is allowed to accuse, the male has been "denied the benefits of, or be subjected to discrimination under any education program or activity", where the activity is the hearing itself?

  • Cynical Asshole||

    I know I am thinking logically about a government dictate, but reading that one sentence of Title IX, are not each of these Universities breaking the Title IX law by not giving equal treatment of sexes during these hearings?

    Thinking logically = mansplaining with your cis-hetero male privilege or some shit, who the fuck knows.

  • R C Dean||

    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.

    Which supports exactly zero federal involvement in campus policies on student behavior, other than to ban overtly discriminatory policies.

    Looking around for overtly discriminatory policies, boy, the way they handle accusations of sexual misconduct certainly jumps off the page.

  • ||

    Never a good sign when Robbo posts a non-links article after 3:30 - that always bodes ill for PM links.

  • GILMORE™||

    the need for federal law and regulation that is trauma-informed and fair

    1) anyone care to try and explain what "trauma-informed" means?
    and
    2) i'm going to go out on a limb and guess that it cancels out the term "fair"

  • R C Dean||

    anyone care to try and explain what "trauma-informed" means

    What anyone claiming to be a victim says, goes.

  • ||

    I am guessing it means they get to speak and you don't.

  • Cynical Asshole||

    It means "check your privilege and shut your mouth while some crazy bitch accuses of being a rapist, you white male shitlord!"

  • LarryA||

    "trauma-informed" = "Only the accuser was traumatized, so only the traumatized accuser's traumatized evidence is fair."

  • GILMORE™||

    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

    translation = "Preumed MOSTLY guilty sans trial."

    I mean, better than thousands of innocent men be inconvenienced/punished/have careers dashed than 1 potential assumed-victim being made to feel uncomfortable, right?

  • R C Dean||

    Have any of these campus rape tribunals dealt with a homosexual rape yet? I'd be curious to know how they uncrossed those wires.

  • ant1sthenes||

    If they were gay, they both get kicked out. If they were lesbian, anyone who acknowledges it is kicked out.

  • GILMORE™||

    The point of campus-adjudication processes is to affirm the rights of individuals to educational opportunities

    Its funny how they say that while justifying the institutionalization of police-state powers by schools that otherwise were mostly 'leaving people alone'.

    In other words, "Stop trying to help". You're not helping.

  • R C Dean||

    I just cannot see how the school is denying the rights of individuals to attend school functions if it doesn't adjudicate student complaints against each other.

  • Cynical Asshole||

    Because a chick who gets drunk, has sex and regrets it the next morning might bump into the guy she hooked up with and might feel bad.

  • Cynical Asshole||

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

    No. Shit.

    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.
    ...
    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.

    [Emphasis mine] Classic bait and switch: "Oh, well, it's not like we're kicking accused students out of school forever or anything, we're just going to make sure there's a note on their transcripts so that any school they try to transfer to will know they were expelled for (most likely) a drunken hook-up and/or sticking it crazy. but we don't want to ruin anyone's life or anything."

  • Random Axe Of Kindness||

    http://chicago.cbslocal.com/20.....e-baylors/

    This is a former defense attorney. An effing former defense attorney. She's a credit to the profession, for sure.

  • Chris_Halkides||

    A few months ago The Economist ran an article on Title IX. An anonymous president of a college said that tribunals adjudicating sexual assault cases had the ability to impose "career capital punishment." The notion that someone found responsible can just pick up and go to another school is utter rubbish

    But if an assaulter could do so, the punishment of moving to another school would make no sense: according to the theory that many sexual assaults on campus are perpetrated by serial assaulters, then the first college would just be passing the trash to a second one. One can and should question the reality of an epidemic of serial assaulter, but that is a separate matter.

  • BigW||

    She should fire every damned worker in the OCR and then take every single thing from their offices and burn it...

  • ||

    Perhaps one of the most efficient ways of dismissing MRA concerns is to link men's rights to white rights (read: supremacy). There is o course not by any logic place for comparison between the horrific abuse of blacks and the strict gender roles of the past. This kind of initiative is not only ridiculous to begin with, but lends credence to this kind of simplistic dismissal. While I of course not dispute that there is an underserved white underclass, there is also no doubt that my skin colours confers privilege on me - much less than in the past, and mostly because of my higher likelihood to have access to education rather than because of remaining discrimination, but still.

    Perhaps this will convince you: I cannot think of a single leading MRA concern that does not hurt blacks more than "privileged" races (whites, Jews, Asians). False accusations? Father's rights? Sentencing disparities? Violence, domestic, sexual, and overall? Black and Latino men are overrepresented all over.

  • Chris_Halkides||

    At a recent point/counterpoint at the NYT the question of how many more false convictions would happen when one uses preponderance of the evidence versus beyond a reasonable doubt as the bar for a finding of culpability. One of the participants, John Villaseno, wrote an academic article on this subject. Believing that the number of false convictions would not rise is engaging in magical thinking.

  • Chris_Halkides||

    the first sense of my comment should read: A recent point/counterpoint at the NYT touched upon the question of how many more false convictions would happen when preponderance of the evidence vs. beyond a reasonable doubt is the standard. The citation for the article I mentioned is Law, Probability and Risk (2016) 15 (4): 223-237.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online