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Betsy DeVos: The Era of Weaponized Title IX in Campus Rape Cases Is Over

"Through intimidation and coercion, the failed system has clearly pushed schools to overreach," says DeVos.

DeVos SpeechERIN SCHAFF/UPI/NewscomIn a major speech assailing the deprivation of due process protections under the Obama administration, Education Secretary Betsy DeVos will vow to rein in the federal guidance compelling colleges to adjudicate sexual assault disputes between students.

Reason has obtained excerpts from her prepared remarks, which DeVos will deliver at George Mason University this afternoon.

No one could accuse DeVos of pulling punches. Her speech accuses her predecessors of "weaponizing" federal regulations and turning them against students.

"The era of 'rule by letter' is over," her speech says, referencing the Obama-era Education Department's infamous "Dear Colleague" letter, which fundamentally changed the way schools handle sexual misconduct issues. "Through intimidation and coercion, the failed system has clearly pushed schools to overreach."

The Dear Colleague letter was released on April 4, 2011, by the Office for Civil Rights, an Education Department sub-agency charged with ensuring that federally funded schools comply with Title IX, which mandates equality between the sexes. The letter holds that sexual harassment and sexual violence are forms of gender inequality, and that it is thus the responsibility of colleges to vigorously investigate and adjudicate rape disputes rather than leaving such matters to the criminal justice system.

The new guidance encourages—and in some cases requires—university administrators to neglect the rights of accused students. It specifies, for instance, that colleges should use a "preponderance of the evidence" standard for determining guilt; officials need only be 51 percent sure an accusation is credible to expel an accused perpetrator. It also discourages officials from allowing students to cross-examine each other, because that might be too traumatizing for a survivor of sexual assault. Never mind that cross-examination is one of the best ways for an objective jury to determine who is telling the truth.

"The notion that a school must diminish due process rights to better serve the 'victim' only creates more victims," DeVos' speech says.

The problems with the Obama-era Title IX guidance are essentially threefold. First, it isn't obvious that Title IX—a one-sentence statute—could or should be read as having anything to do with violent crimes.

Secondly, the guidance raises constitutional questions, since it appears to many civil libertarians that a federal agency was instructing public institutions to violate the due process guarantees of the Fifth Amendment. That isn't the only way the guidance is legally suspect: The Office for Civil Rights never subjected it to public notice and comment—a process required by the Administrative Procedure Act—and so it was always unclear whether the letter's dictates actually carried the force of law, even though dozens of universities rewrote their sexual misconduct policies to get the feds off their backs.

Finally, since the guidance is legally dicey, it led to lawsuits left and right. Many students who were found responsible for sexual misconduct under the new guidelines have filed suit against their universities, and a nontrivial number of them have prevailed in court. On that front, DeVos couldn't have picked a better campus to deliver her speech: A GMU student, "John Doe," was expelled for engaging in BDSM sex that the university judged nonconsensual. He later sued GMU and won, since it was obvious to a Virginia district court that the administration's investigation was biased against Doe and had deprived him of his due process rights.

It has become apparent to many fair-minded legal experts—the American Association of University Professors, the Foundation for Individual Rights in Education, and several members of the Harvard University Law faculty (including President Obama's personal mentor, Charles Ogletree)—that the current situation is morally, legally, and practically untenable. Thankfully, DeVos' speech signals that she intends to do what the Education Department should have done in the first place, six and a half years ago: subject its guidance to public scrutiny.

"We will seek public feedback and combine institutional knowledge, professional expertise and the experiences of students to replace the current approach with a workable, effective and fair system," the speech says.

Alcohol-fueled sexual assault is certainly a problem on college campuses, though misleading statistics disguise the fact that many drunken encounters are much messier than some would like to believe. But the existing legal regime, however well-intentioned it may be, just doesn't deliver justice. In her speech, DeVos plans to highlight the case of a woman who accused someone of rape and was then required to play the role of the prosecutor at the hearing to determine whether he had indeed assaulted her.

"The current failed system left one student to fend for herself at a university disciplinary hearing," the speech says. "Without any legal training whatsoever, she had to prepare an opening statement, fix exhibits and find witnesses."

That sounds crazy, but it happened. I wrote about it. The case is a perfect illustration of the problems that stem from adjudicating rape in campus kangaroo courts. We owe it to victims and to the accused to provide a fairer system that actually achieves a measure of justice for all involved.

She'll no doubt take flak for it, but DeVos is right to criticize the Obama administration's approach to college sexual assault, and she's right to reform an utterly dysfunctional system.

Photo Credit: ERIN SCHAFF/UPI/Newscom

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  • BYODB||


    "The era of 'rule by letter' is over," her speech says...


    Stop, Betsy! STOP! I CAN ONLY GET SO HARD!

  • Chipper Morning, Now #1||

    I don't understand. If you can only get so hard, why do you want her to stop? What is the danger, if you already got as hard as you are able? Anything extra she does will have no further effect on you.

  • Enjoy Every Sandwich||

    It sounds like one of those roleplay things where you shout "stop!" but it really means "more!". You only really stop if he says the safe word.

    Or so I'm told...

  • Quixote||

    It is certainly refreshing, and even stimulating, to hear someone pointing out the obvious fact that academic institutions are not equipped to deal with certain delicate issues, and that the police should be called in to handle them instead. We have adopted aggressive college policing procedures to great acclaim at New York University; let us hope that other institutions across the country rapidly follow suit. Surely no one here would dare to defend the inappropriate "First Amendment dissent" of a single, isolated judge, or the so-called analysis of a "media specialist" who is apparently trying to stir up controversy about America's leading criminal "satire" case in a newly issued book entitled "Sympathy for the Cyberbully"? See the documentation at:

    https://raphaelgolbtrial.wordpress.com/

  • BYODB||

    Past a certain point, it just lengthens the time you have an erection and from what I'm told longer than 4 hours is a bad sign.

  • Anomalous||

    The treatment for that is quite painful, from what I hear. It involves nude pictures of Lena Dunham.

  • p3orion||

    You should provide a trigger warning before imposing that mental image on us all!

  • $park¥ leftist poser||

    "We will seek public feedback and combine institutional knowledge, professional expertise and the experiences of students to replace the current approach with a workable, effective and fair system,"

    It's funny that she's expecting schools to work with her.

  • BYODB||

    There are JOBS on the line here, people! We want JOBS right?! Well this how we get government JOBS!

    /Unionized Progressive

  • Long Woodchippers||

    Any inaction should only work against the schools.

    Trump is being sued by some over his DACA announcement on claims that the announcement wasn't in line with the Administrative Procedures Act which requires a period of public comment. Obama didn't follow APA when Janet Napolitano announced DACA by letter, but apparently that's not enough for a new administration to undo it.

    Perhaps they've learned the lesson and been proacive here. DeVos will announce a period during which they'll talk to schools, let people write letters and comment at hearing, then Trump and DeVos will do what they always wanted to do anyway.

  • borabosna||

    That's really bad. She should not be replacing anything. It should be handled by the police and criminal courts. It doesn't matter what the replacement is. As long as a "parallel system of justice" exists, it will be awful. She needs to completely repeal it.

  • Chipper Morning, Now #1||

    Wait, wha-wha-whaaaaat??? Robby Soave? Robby, you finished that Zelda game already?

  • $park¥ leftist poser||

    My kids finished in two weeks. Six weeks really ought to have been long enough for Robby.

  • Krabappel||

    I had to tell my partner to stop looking for shit and just beat the game already.

  • Ska||

    Looking for shit is the fun part.

  • Rhywun||

    I got bored while looking for a proper dungeon - I'm still not sure there are any. Those little underground lairs don't cut it.

  • Chipper Morning, Now #1||

    Wait, are we still talking about Zelda?

  • Rhywun||

    There is never a wrong time to talk about Zelda.

  • BestUsedCarSales||

    Zelda is the stupid man's Ys.

  • Juice||

    I killed Ganon then went to go collect everything and finish every side quest. Problem is there are like 900 Korok seeds (I have about 140) and 78 side quests (I have 48). Also I have 130 shrines, but there must be at least 28 more because I need like 7 more heart containers.

    Also, there are different ending scenes based on what you've completed before killing Ganon, so there's that.

  • Chipper Morning, Now #1||

    NO SPOILERS

  • Cro's Innumerous Basterds||

    Ya-ha-ha, bitches!

  • GamerFromJump||

    There are 120 shirines (30 upgrades). There's actually a choice to be made. You can have the full complement of hearts or stamina, but not both. You have to make up the difference with items. I go with stamina, because hearts are easy to boost/recover.

  • BYODB||

    Fired from WaPo already?!

  • Juice||

    You wouldn't be able to finish it properly in that time. Sure, you can just cut to the chase and go kill Ganon right after you free the Divine Beasts and get the Master Sword. But you should go collect all your memories too at the very least. And the only way to truly "finish" the game is to complete every shrine and collect every Korok seed. Good luck with that.

  • Sports Reporter Charles Manson||

    "many fair-minded legal experts—the American Association of University Professors...several members of the Harvard University Law faculty..."

    Ha ha, that's really amusing.

    I would guess that these are *unfair* minded legal experts who in cases potentially affecting their jobs, suddenly become aware of the importance of fairness. Fairness is for academics, not plebes.

  • Sports Reporter Charles Manson||

    Maybe someone should poll these professors: Would a welder, with his boss's permission, be permitted to have a pinup calendar in his workspace, or could that be used as evidence of a "pattern or practice" of sexism violating federal law?

  • Sports Reporter Charles Manson||

    Let me rephrase in English: Should the law so clearly *not* apply to pinup calendars that employers won't be pressured to ban them to minimize liability risks?

  • Sports Reporter Charles Manson||

    And you thought I was making that up:

    "The legendary pinup calendars of scantily clad women are the usual examples of materials that create a work environment that fosters sexual harassment and discrimination based on sex."

  • Michael Ejercito||

    Sexual duscrimination in the educational context is different from the employment context.

    Employees speak for their employers. Thus, discrimination by employees can be imputed onto the employer.

    The same relationship does not exust between university and student.

  • cthulhu||

    My favorite was always the Rigid Tool calendar.

    (No, I am not making this up. The Rigid Tool company makes tools for plumbing, such as pipe wrenches, pipe thread cutting machines, etc.; they used to publish a pinup calendar of swimsuit models fondling the equipment and it was called, completely un-ironically, the Rigid Tool calendar. Not as arty as the Pirelli calendar, but plumbers get paid better than tire salesmen.)

  • borabosna||

    I don't understand. What's the point of consulting "legal experts"? There is only one thing to be done here: LET POLICE AND COURTS HANDLE IT. Why are they trying to create a replacement for these Title IX kangaroo courts? How can any "parallel justice system" possibly be any good?

  • Brandybuck||

    I'm expecting major protests over this. They may even turn violent. This upends the entire worldview of most on the left. We might actually see protests that make Charlottesville look like a kindergarten outing.

  • Long Woodchippers||

    Leading to even more normals voting for Trump's reelection in 2020.

  • Sports Reporter Charles Manson||

    OR...leading to a "centrist" candidate who deplores Trump's "divisiveness" and denounces "both sides"...

  • Long Woodchippers||

    Some wear pink jackets, some blue, and Bernie wears red...but they're all members of the same fucking country club, wearing the same badge of their jacket.

    Trump's divisiveness is his appeal. The press calls him a racist and he tells them to eat shit. He shows he's willing to bypass Ryan & McConnell if they obstruct.

    Meanwhile, it's like a scene from "Gotham" watching Peter Daou, Kurt Eichenwald, Keith Olberman and Louise Mensch meltdown in the mess hall at Arkham.

  • Brandybuck||

    I always imagine Trump as Emperor Palpatine. Whenever the Left goes apeshit over some imagined microaggression, I can see Trump rubbing his hands in glee, saying, "Yes, let the hate flooow through you!"

  • Suckin' Seed||

    "Trump's reelection in 2020"
    OMFG you have to be kidding

  • BestUsedCarSales||

    Definitely the reaction to Betsy Devos originally was one of the most outsized. Education is something they basically take granted that they control.

  • Diane Reynolds (Paul.)||

    Alcohol-fueled sexual assault is certainly a problem on college campuses

    Is it?

  • Long Woodchippers||

    We can probably agree that alcohol fueled sexual activity is a problem, because it leads to all these recriminations.

  • Sports Reporter Charles Manson||

    ...and gives an unfair advantage to ugly people.

  • Long Woodchippers||

    or the weight challenged.

  • Governor Squid||

    Weight-challenged, or weight-enhanced?

  • Long Woodchippers||

    either

  • Philadelphia Collins||

    I'll take whatever I can get.

  • Long Woodchippers||

    So one Friday night it was nearing 2 am and as the party, as well as any prospects for the night, was thinning out, I felt fingers running up the back of my thigh. She was well over 200 pounds. We both had several beers. "Oh, why the hell not?" And her roommate, of normal weight but just an average face, tagged along.

  • Suckin' Seed||

    "alcohol fueled sexual activity is a problem"
    It's a YUGE problem for those waking up next to a Venusian slime-devil

  • BestUsedCarSales||

    Well, I know I'm against them.

  • ||

    Is it?

    I took it as Robby's tacit support for regular- or other-drug-fueled sexual assaults on campus as well as any sexual assaults, alcohol-fueled or not, off campus.

  • Unlabelable MJGreen||

    Until 2021, anyway.

  • KevinP||

    Thank you, President Trump.

  • Fist of Etiquette||

    How. DARE. You.

  • Carlos Inconvenience||

    But remembers, kids, according to 90% of the Reason staff we were better off under Obama and would have been better off under Hillary.

  • Krabappel||

    Is Reason still suffering from TDS? I stopped visiting earlier this year because it got really tiresome.

  • Domestic Dissident||

    I'm sorry to tell you that it's getting worse, not better.

    And you're not alone, most other people left a while ago also. Most of the commenting here now is done by four or five complete losers carrying on conversations with themselves under multiple handles.

  • $park¥ leftist poser||

    Most of the commenting here now is done by four or five complete losers carrying on conversations with themselves under multiple handles.

    Alright, it's confession time. Who is really running the Double Dummy sock?

  • Chipper Morning, Now #1||

    I don't want to live in a world in which Mikey is not real.

  • Half-Virtue, Half-Vice||

    "Most of the commenting here now is done by four or five complete losers"

    Possibly just one Tulpa.

  • MarkLastname||

    You don't need to tell your other handle that, it already knows.

  • Zeb||

    Is Reason still suffering from TDS?

    If you want an answer from someone who is not completely delusional, depends on who you ask. It's definitely gotten a lot better.

  • Eric Bana||

    Pathetic trolling. ignore

  • Chipper Morning, Now #1||

    I don't think you know how ignoring works.

  • Huzzah||

    On the internet?

    No, he has to tell them. Otherwise, how would they know?

  • colorblindkid||

    I still haven't seen a Reason article saying Hillary would have been better than Trump. It's mostly just "nah nah I told you so" about Trump turning out to not be a libertarian at all. There is a difference.

  • Jerryskids||

    This is just flat-out racist on top of sexist and elitist and genderist - almost 90% of sexual misconduct charges are brought against privileged straight white males. You'll never hear DeVos (or anyone else in the Trump administration for that matter) utter a single word about the railroading of poor lesbians of color falsely accused of sexual misconduct.

  • Brother Kyfho||

    That's because poor lesbians of color (of any gender) are inherently morally superior to privileged straight white [cis] males. Everybody knows that.

  • Cynical Asshole||

    She'll no doubt take flak for it, but DeVos is right to criticize the Obama administration's approach to college sexual assault, and she's right to reform an utterly dysfunctional system.

    Taking flak is an understatement. The screeching and rending of garments coming from the SJWs is going to be epic.

    *pops popcorn*

  • Red Rocks Baiting n Inciting||

    "Betsy DeVos just authorized rape on campus!!"

    "FINALLY STEVE SMITH GET TO PURSUE CUDDLE-RAPE PHD!!"

  • Fist of Etiquette||

    ...many drunken encounters are much messier than some would like to believe.

    I can attest.

  • TGoodchild||

    So that's where you got your name - I knew it!

  • damikesc||

    Libertarians, rest assured: Gary Johnson wouldn't have done the first thing about this issue had he won.

  • Zeb||

    You just made that up.

    Anyway, it's irrelevant because no one voted for Johnson because they thought he would actually be elected.

  • BYODB||

    Sadly, this is true. Or maybe it's a good thing it's true, since Gary sucked as a candidate in most ways even while he seems personally likable.

  • Africanis||

    I think if the men in college said, you know what we will just go to all male colleges. The lib women would sue to get in then complain about all the raping and misogyny going on. They will probably file suit to stop Betsy and that crazy nonsense called due process.

  • Long Woodchippers||

    I read about the 'boy' going to an all-girls school in England who killed itself because the school insisted on using the oppressive birth name on documents.

  • MaleMatters||

    Only four male colleges remain.

    There're 37 female colleges.

    Google it.

    Many liberals might say male colleges promote male power and privilege, and women's colleges promote equality.

    Such bias may explain:

    "Republicans don't have near as big a woman problem as Democrats have a man problem." -Wall Street Journal
    http://www.wsj.com/articles/ki.....1412900814

    And this by Julian Assange:

    "The collapse of the Democratic vote over the last eight years is at every level, city, state, Congressional and presidential. It corresponds to the domination of Democratic decision making structures by a professional, educated, urban service class and to the shocking decline in health and longevity of white males, who together with their wives, daughters, mothers, etc. comprise 63% of the US population (2010 census). Unlike other industrialized countries, US male real wages (all ethnic groups combined) have not increased since 1973. In trying to stimulate engagement of non-whites and women, Democrats have aggressively promoted identity politics. This short-term tactic has led to the inevitable strategic catastrophe of the white and male super majorities responding by seeing themselves as an unserviced political identity group. Consequently in response to sotto-voce suggestions that Trump would service this group, 53% of all men voted for Trump, 53% of white women and 63% of white men." -Julian Assange http://www.twitlonger.com/show/n_1spvr6n

  • Long Woodchippers||

    Read a good piece on this subject at The Atlantic, where Emily Yoffe notes at the end that the usual suspect red states are passing laws to enshrine the Dear Colleague letter into state legislation. However, due process and rights of the accused are still protected by the constitution, and states are still subordinate to that, so thank God (and Trump) for Neil Gorsuch.

  • Michael Ejercito||

    Interesting.

    this does beg the question of whether Congress or the states have the power pass a law identical to the Dear Colleague letter.

    Private universities are not bound by the due process or equal protection components of either the 5th or the 14th Amendment. As such, if a private university chooses to require female students, but not male students to remain virgins until marriage, and expels female students who are suspected of not being virgins (even if the virginity was lost due to rape) , and refuses to provide these students a fair opportunity to present their side of the story, the Constitution does not prohibit that.

    Nor is the Constitution implicated if the state or Congress refuses to prohibit such a policy, or disqualify such a university from receiving funds.

    But the Constitution would be implicated if Congress or a state conditioned the receipt of one penny of public funds on the adoption of such a policy.

  • Michael Ejercito||

    Continued...

    In general, neither Congress nor the states obviously may not require private individuals to do what they themselves are forbidden to do- at least not without satisfying strict scrutiny. They can not require private individuals or organizations to set up churches, nor discriminate on the basis of race, nor break into people's homes to search for drugs absent a warrant.

    But could they forbid private organizations from adopting greater protections for its members (both procedural and substantive) than that guaranteed by the Constitution? Could they forbid a university from adopting a "beyond a reasonable doubt" standard in disciplinary hearings, even though a "preponderance of the evidence" standard is used in civil courts when rape victims sue their attackers for monetary damages?

    That is an open question.

  • p3orion||

    "Emily Yoffe notes at the end that the usual suspect red states are passing laws to enshrine the Dear Colleague letter into state legislation."

    I assume this was just a brain fart on your part? The only states Yoffe mentions passing such legislation are New York, Connecticut, Massachusetts, and (of course) California.

  • Half-Virtue, Half-Vice||

    Looks like rape is back on the menu boys!

  • GamerFromJump||

    Screeds on how she's a gender traitor in 3...2...1...

  • cthulhu||

    She won't be called a gender traitor, instead, they'll claim that she's a man in drag.

  • p3orion||

    Wouldn't matter, as long as she identifies as a woman, right?

  • ||

    Good news.

  • Tionico||

    "Real" rape is a criminal offense, and MUST be left to the criminal court system to handle. Two bit college admin folks with strong biases, "names to make", personal scores to settle, etc, are NOT qualified to adjudicate such crimes.

    The plain and simple of it all is that Title IX never had any provisions for including criminal sexual assault in its focus on "equality". In their search for "equality", by biasing everything strongly toward the alledged "victim" (who sometimes has waited months to "decide" the incident was "non-consensual" or "criminal") a new class of genuine victims was created.... and that victim's civil rights as GUARANTEED under our federal Constitution were almost universally denied.

    DeVos would do will to simply restate essentially what I wrote above.... schools are NOT to adjudicate criminal offenses. Every jurisdiction have criminal court systems created expressly for that function. USE them. They mostly observe the rules to assure each individual's civil rights are preserved.
    Further, a "sentence" of expulsion is not a suitable punishment for a crime as heinous as real rape. Getting sloshed then cuddly is not rape.....

  • Long Woodchippers||

    Title IX is to ensure that there's no discrimination in educational programs and facilities (including sports) between what's offered to boys and girls.

    Nothing about who's jumping in bed with who.

  • Suckin' Seed||

    That vagina, you didn't build that.

  • Long Woodchippers||

    But it is educational

  • Rockabilly||

    OH - the cultural marxists will be very angry. Maybe they'll send Antifa to attack.

  • MaleMatters||

    I urge everyone to read this September 6 report in the Atlantic:

    "The Uncomfortable Truth About Campus Rape Policy"

    Search on the title.

  • Ned Netterville||

    If this is a defense of the Trump administration, stop it! http://reason.com/reasontv/201.....dium=email

  • cjcoats||

    "That isn't the only way the guidance is legally suspect: The Office for Civil Rights never subjected it to public notice and comment—a process required by the Administrative Procedure Act..."

    Which leads me to the opinion that those persons who have been wrongfully punished by their universities for violating this letter should have a cause for action for Extortion under Color of Office, against those individuals in the Office for Civil Rights that propagated this letter. This should be individual liability, with sovereign immunity claims disallowed.

    Pour encourager les autres.

  • Agen Judi||

    Agen Poker Online nice share...

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