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Betsy DeVos Plans to Overhaul Title IX, Focus on Due Process for Accusers and the Accused

Reason has more details on the new rules, which would mandate cross-examination in disputes.

DeVosLEAH MILLIS/REUTERS/NewscomThe Education Department is drafting a new approach to campus sexual misconduct adjudication. It will permit colleges to adopt higher standards in hearings, mandate cross-examination of relevant parties in a dispute, and stress that all students are considered innocent until proven guilty, an official with knowledge of the proposal has confirmed to Reason.

If adopted as formal policy, these measures would go a long way toward fixing the due process deficiencies that plagued the Obama administration's guidance relating to Title IX, the federal statute that deals with sex discrimination in schools.

This news was first reported by The New York Times, which obtained a leaked draft of the new rules. The Education Department had not planned to release details to the public yet; as such, the agency declined comment to the Times. But Reason was able to confirm that the Education Department is indeed mulling the changes detailed in the Times story.

According to the Times, the new rules "would add the ability for victims and their accused perpetrators to request evidence from each other and to cross-examine each other. The rules also allow the complainant and the accused to have access to any evidence obtained during the investigation, even if there are no plans to use it to prove the conduct occurred."

Cross-examination is a key component of due process and an important tool for arriving at the truth of a dispute. But under the previous administration's Title IX guidance, university officials were discouraged from extending this right to students accused of sexual misconduct, under the theory that scrutinizing alleged victims would be traumatizing.

The new policy would mandate cross-examination in situations where a school's adjudication process involves a live hearing, and it would require an effective substitute in all other cases.

Schools would also be empowered to choose non-adversarial approaches to handling disputes, such as mediation and restorative justice, as long as all parties voluntarily agree that this is in their mutual best interests. Restorative justice has many adherents—public health professor Mary Koss, a feminist and victims' advocate, is one—but was disfavored under the previous administration's rules.

The Education Department also wants to define 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," according to The Times. Previous guidance, released in 2011, compelled administrators to combat any unwelcome conduct of a sexual nature.

These modifications to the federal government's enforcement of Title IX are bound to provoke the ire of those feminists who claim accusers should receive preferential treatment in disputes. But for everyone who values basic fairness in campus sexual misconduct procedures, Secretary Betsy DeVos's plan looks like a massive victory.

Photo Credit: LEAH MILLIS/REUTERS/Newscom

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  • SIV||

    MAGA

  • SIV||

    Still not tired of winning

  • Chipper Morning Baculum||

    Wouldn't you have to get started first? And wouldn't that require sneaking the sunrise past the rooster?

  • JeremyR||

    "It will permit colleges"

    But if it won't require, will any colleges actually adopt them, or will they simply continue to use the old ones?

    The reason the current system is in place is because that's how colleges want it, as it fits what they perceive to be justice - ie, the woman is always right, the guy is always evil. Unless you change that thinking, nothing is going to change.

  • Hugh Akston||

    The current system is in place because the Obama Administration sent out a letter suggesting colleges do so and then further suggesting it would be a real shame if something were to happen to their federal funding.

  • Mark22||

    Yes, but given that about half the college administrators have been hired to implement a social justice agenda, colleges are now absolutely committed to this; meaning, these administrators will fight any attempt to eliminate their cushy, well-paid sinecures literally tooth and nail-polished nail.

  • JWatts||

    "The current system is in place because the Obama Administration sent out a letter suggesting colleges "

    True, but many of the college administrators wanted these changes. That's why there wasn't any push back. This letter was cover to implement the Kangaroo court system.

    "then further suggesting it would be a real shame if something were to happen to their federal funding."

    Which specifically allowed the administrators favoring this action to insist they had to be implemented.

  • susancol||

    For about a year (or maybe a little more) before the Dear Colleague letter came out, university lawyers were discussing the merits and problems with allowing the victim/accuser to appeal exoneration of the accused, and other innovations that later showed up in the letter.

  • MaleMatters||

    I agree. Sadly, many universities today may be dominated by feminist administrators who are former feminist students, and are still obsessed with portraying all women as innocent victims and all men as violent, misogynistic rapists who must driven off campus.

  • SIV||

    Robby's on the Trump Train. Cocktail party invites sure to plummet.

  • JWatts||

    "Robby's on the Trump Train. Cocktail party invites sure to plummet."

    LOL, you missed the verbiage. There's nary a mention of Trump in this article. Robby even avoids the phrase Trump Administration. That was intentional.

  • SIV||

    No shit. That's the point of my comment.

  • Scarecrow Repair & Chippering||

    "Would allow"????

    Why not just mandate that criminal charges must be tried in the criminal justice system?

    What is this unholy urge to set up a separate criminal justice system just for college students?

  • Eddy||

    see below

  • Eman||

    Incentivizing an educated workforce that can be competitive in a twenty-first century, globalised economy?

  • soldiermedic76||

    Education means giving up due process?

  • Fairbanks||

    it depends in part on whether you'd want the test of guilt to be beyond-a-reasonable doubt for both the college and criminal courts. Personally I think this very high hurdle is appropriate for whether someone is incarcerated, but too high for the colleges' purposes.

  • Illocust||

    Is the guy getting kicked out going to be compensated for all the money he has already paid the school? Will the several years of his life already spent on an education in a facility that will no longer certify his education to potential employers somehow come back into existence.

    A college education costs more than most houses and is only worth something in the employment market if completed. Kicking someone out of college is taking all that money and time spent and burning it.

  • Diane Reynolds (Paul.)||

    If only there were some system where when you're accused of a crime, you receive some kind of hearing with representation... maybe a jury of your peers, and maybe even a judge to handle all the sticky bits that might come up while the two sides argue it out.

  • The Last American Hero||

    The sticky bits were the cause of all the trouble, so far as I can tell.

  • Eman||

    I can't say that doesn't sound nice, but here in reality we can't solve problems with science fiction stories.

  • Social Justice is neither||

    I know. It's just too much to expect a girl to report if a crime has taken place. Much easier to simply ruin a man's life on her say so because her feelings were hurt or she felt icky because the wrong guy found her attractive.

    You people are straight up evil.

  • NotAnotherSkippy||

    Continuing the long string of disastrous anti-liberty policies over the last 2 years.

  • Eddy||

    If this part is true, it's the most important reform:

    "The Education Department also wants to define 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," according to The Times. Previous guidance, released in 2011, compelled administrators to combat any unwelcome conduct of a sexual nature."

    This borrows the Supreme Court's language, IIRC, and is actually tied to the law it's supposed to be interpreting - access to colleges and universities may not be denied based on sex.

    This also - if it's actually in the draft and they actually enact it - a part-solution for the question "why not use the criminal process"? The criminal process wouldn't have to prove interference with educational access. So potentially there would be a suggestion to use the criminal process.

    Not that I'm naive enough to compare a college "trial" with a full-blown criminal trial, since full-blown criminal trials are rare. To be fair to the colleges, we should compare their sandbox "trials" to the plea-bargain system.

  • Eddy||

    OK, the due-process parts are also important, otherwise the substantive standard of pervasiveness and denial of access will not be fairly applied. Without due process, the colleges will find that any crotch-grab is so traumatic and so forth as to deny educational access. Crotch-grabs should be for criminal court, where at least you won't be accused of interfering with education, just with the same sort of offense as any random bum on the street who does the same thing.

  • Eddy||

  • LarryA||

    "unwelcome conduct on the basis of sex"

    Hopefully that would at least stop investigations where the "victim" is saying, "Look, stupid, nothing happened that I objected to. Tell the busybody who reported to pound sand, and get off my boyfriend's case!"

  • Get To Da Chippah||

    These modifications to the federal government's enforcement of Title IX are bound to provoke the ire of those feminists who claim female accusers should receive preferential treatment in disputes.

    FTFY

  • dchang0||

    Feminists also want the female ACCUSED to receive preferential treatment.

  • robyn418||

    Absolutely correct!

  • Mark22||

    Gender equality FTW!

    All genders are equal, some are just more equal than others!

  • ||

    Doo process? /shakes shiny toy.

    How does it work?

    Ironic that Literally Hitler is restoring due process in....college campuses.

  • Texasmotiv||

    Well, due process is a tool of the patriarchy/white privileged/literal Nazis to subjugate the minority haven't you heard?

  • FlameCCT||

    Doo process aka polishing a turd?

  • FlameCCT||

    Or did you mean Due Process?

  • Rossami||

    A small step in the right direction. Far better would be to get these untrained college bureaucrats out of the process entirely. If a student commits a crime, take it to the police. Let the professionals investigate it and let the case be heard before a proper judge. College "judicial" proceedings should be limited to purely academic infringements like cheating on a test or plagiarizing in a paper.

  • Eddy||

    I'd add some low-level vandalism and minor public intoxication, but basically felonies and serious misdemeanors should be for the courts, unless the university's code has a definition which departs from the legal definition.

    So if a college has what the rev calls retrograde and outdated restrictions on consensual extramarital relations between the sexes (or within the sexes), then there would be a case to have a college tribunal for such offenses.

  • Olga||

    Do you know how hard it is to go to the police and get any justice for sexual assault? Most sexual assault is not evil guy in an alley jumping out and getting you. In a college scenario it is often a man the woman is on a date with. Or a friend of a friend that offered her a ride home. Or maybe another college man at a party that put a drug in her drink. So the evidence is likely not going to be enough to send someone to jail. Women should be able to have the experiences that their male counterparts are having without fear they will be assaulted anytime they let their guard down.

    A hard cross examination process sounds like something created to make reporting more difficult. Granted, I believe the accused have rights and of course the school should speak to both students and consider if one of the students might be a danger to other students or if two people had a horrible miscommunication. Unless the victim wants to speak to the person who she/he is reporting about the school shouldn't require it.

    While we assume the victim is always female, men can also be victims of both men and women. They should also feel safe coming forward if they are assaulted as well.

  • dchang0||

    Re: "Do you know how hard it is to go to the police and get any justice"

    Do you know how hard it is to go to the police and get any justice for ANY crime? While this sounds like a complaint, it is a good thing by design to make it hard to falsely accuse, falsely convict, and/or falsely punish any innocent person. In other words, "It is better that ten guilty persons escape than that one innocent suffer."

    Why should it be easier to falsely accuse, convict, or punish an innocent person just because it is a sexual crime? I have never heard a satisfactory answer to this question that went beyond feelz and hysteria into logic, principles, or philosophy.

  • Mark22||

    Most sexual assault is not evil guy in an alley jumping out and getting you. In a college scenario it is often a man the woman is on a date with. Or a friend of a friend that offered her a ride home. Or maybe another college man at a party that put a drug in her drink.

    Don't go on dates with men you don't know very well. Don't take rides from men you don't know. Don't go to parties and accept drinks from strangers. It isn't the job of society to make these irresponsible behaviors safe. And if you choose to engage in these behaviors, accept the consequences, which may be that you become a victim of sexual assault without being able to prove it legally.

    Unless the victim wants to speak to the person who she/he is reporting about the school shouldn't require it.

    Not only should the school require it, it should also reject all claims of sexual assault where there is not either physical evidence or multiple, credible witnesses. The fact that this inconveniences the claimant is irrelevant.

  • Libertymike||

    She said is an insufficient evidentiary basis upon which to find the accused responsible.

    Same with a criminal matter.

  • Chris_Halkides||

    "Cross-examination is the greatest legal engine ever invented for the discovery of truth." John H. Wigmore, quoted in Lilly v. Virginia, 527 U.S. 116 (1999).
    Calling someone a "victim" prior to an adjudication prejudges the outcome.

  • Incredulous||

    It's supposed to be hard!!! These are serious accusations that can destroy lives. Being falsely accused of sexual assault can be worse than a sexual assault itself. People can lose absolutely everything important to them - their livelihood, their relationships, their reputation and even their freedom. And false accusations ARE NOT RARE. There are major motivations to falsely accuse somebody - sympathy, revenge, blackmail, child custody battles, money, etc. Many false accusers are just very mentally ill or sociopathic.

    BOTH sides in these cases have rights and deserve to be believed until proven otherwise.

    Why is that so hard to understand????

  • Mark22||

    How about we adopt the simple, sensible rule: "Accusations that a student violated the law must be referred to law enforcement. Otherwise, the federal government leaves the handling of student conduct entirely up to the discretion of college administrators."

  • Chris_Halkides||

    I am not sure what would constitute an effective substitute for cross examination. Moreover, cross examination is something best left to lawyers, yet some colleges and universities prevent their participation.

  • I am the 0.000000013%||

    1- Get governments out of colleges and universities

    2- Let colleges and universities operate as private businesses with their own rules for handling behavior. Since women are a significant majority of long term customers of higher education, they will get treated well, just like every good customer does in every successful competitive business.

    3- Education costs plummet, value of education increases, bad educators and colleges go away, good educators and institutions will thrive, society and individuals win bigly!

    4- Since this is such a stellar outcome, we can expect it to happen... ?

  • Jeep's Blues||

    In Annie Hall the character Alvy Singer muses that with regard to ethics politicians are one notch beneath child molesters. This, from Senator Richard Blumenthal of New York City:

    "How dare DeVos think of lessening the liability of colleges/universities for sexual assault instead of standing with & helping survivors. Deplorable & disgusting. This must not come to fruition."

    --Senator Richard Blumenthal (D-NY)
    Twitter, August 30, 2018

  • Sonny Bono's Ghost||

    How about we OverTheSide Title IX instead.

  • Whorton||

    GOOD . . .If DeVos does nothing else in her tenure, I would be happy with this.

    Schools need to realize that Gawd Dammit, LIFE IS TRAUMATIZING. They need to prepare students to deal with reality and real life. Not make a bunch of Social Justice Chums.

  • GamerFromJump||

    This is why the left is trying so hard to destroy DeVos. They do not want Title IX to be reformed, because it's a weapon to beat "evil males" with.

  • ||

    A bill with Salmon teeth.

  • GamerFromJump||

    One of Trumps better appointments. Like Trump himself, she gives all the worst people absolute fits.

  • vek||

    DeVos has been a little slow with things... But so help me Jesus, almost everything she does seem to get around to has been pretty good. This could be massive. Personally, I don't think these changes should be optional as is implied. The corruption of leftists in Uni is too great. This shit needs to be mandatory for them FedGuv dollars. It's the same BS the commies use, might as well throw it back at them!

    To all you Trump haters out there, SERIOUSLY??? Still?????? He has many bad things about him, but can you just imagine what the Clinton EPA, DOE, etc would be doing with people appointed by that bitch? Criticism is warranted for Trump plenty often, but he's not really THAT bad on the stuff he's bad on, and he and his appointees have been pretty fucking righteous on a TON of stuff.

    Just sayin'.

  • Deplorable Victor||

    The dims are ran by manhating femifascist cunts - and Obama was the biggest pussywhip ever. Good for Devos.

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