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Betsy DeVos’ Critics Botch Basic Facts About New Title IX Rules

No, the new rules do not "absolutely prevent survivors from coming forward."

DeVostLEAH MILLIS/REUTERS/NewscomNews 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.

Photo Credit: tLEAH MILLIS/REUTERS/Newscom

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  • Diane Reynolds (Paul.)||

    prevent survivors from coming forward."

    Survivors? Are we really sticking to that language?

  • DiegoF||

  • Fuck you, Shikha (Nunya)||

    That's what happens when an entire generation transforms the word literally to be literally always metaphorical.

  • SIV||

    Trump's Department of Education. Trump's Secretary of Education. The Trump Administration.

  • Chipper Morning Baculum||

    "Carnac?"

    "Name three things you could significantly improve by handing them over to a bunch of first graders."

  • Rigelsen||

    "Carnak?"

    "Name a joke that's only funny if you've had a frontal lobotomy."

  • Rigelsen||

    Wrong, wrong, wrong! It's only "Trump's XXX" when you don't like what they're doing. I mean, it is a known fact that Trump is always personally involved when any part of the administration does anything objectionable. Good and respectable things only happen when Trump leaves for the golf course or when he goes down for a nap.

  • Fist of Etiquette||

    ...and many progressive feminists are fuming.

    Evergreen clause.

  • DiegoF||

    many progressive feminists are fuming

    Maybe Title IX should be invoked to guarantee the right to free and equal dorm-bathroom soap dispensers.

  • ||

    Even filthy Russians deserve 'soap'.

  • UnrepentantCurmudgeon||

    You must admit it was a pretty good sitcom

  • ||

    My sister in law and I had words and it got nasty.

  • ||

    My sister in law and I had words and it got nasty.

  • Fuck you, Shikha (Nunya)||

    Go on...

  • IceTrey||

    Here's a crazy idea, if you're raped or sexually assualted call the police. If the accused is arrested they are suspended, if they are convicted they are expelled. Done and done.

  • TrickyVic (old school)||

    Crazy!!!

  • Paloma||

    And for the door blocking professor perhaps the EEOC could be notified?

  • MatthewSlyfield||

    EEOC would only have jurisdiction if the door blocking professor was discriminating against other professors/university employees. Students are not employees of the university.

  • ||

    If the accused is arrested they are suspended, if they are convicted they are expelled. Done and done.

    If the accused is arrested, the university gets to decide if they are suspended. If they are convicted, the university gets to decide if they are suspended.

    Believe it or not, women lie about rape even with men they've had consensual sex with and it's not unheard of for police officers to arrest someone who's got a solid alibi. Arrest very =/= guilt.

  • FlameCCT||

    A couple of years ago, the University of NM had 3 football players arrested for rape/sexual assault. After their lawyer presented video, they were released and not charged. Similar to the Duke lacrosse team accusation only the Duke players didn't have video.

  • MatthewSlyfield||

    link?

  • markm23||

    A more important difference is that the NM prosecutor watched the video and followed the evidence. One of the accused at Duke had an alibi supported by security camera shots - he was withdrawing money from an ATM across town - and Nifong refused to review this evidence.

  • DrZ||

    Hmmm, but I don't think police are welcome on most college campuses.

    Hmmm...perhaps this is why people get raped?

  • ||

    Each College Campus has it's own police Force.

  • ||

    I agree. But you also need to keep in mind that the psychological affects are overwhelming. And since the Criminal Justice System is "Adversarial" the Victim is usually called a liar or its insinuated by the defense. Defense Lawyers have a job to do. But Femenists don't like it when victims are accused of asking for it.

  • UnrepentantCurmudgeon||

    Few defense lawyers employ that gambit any more; judges usually don't permit it and juries don't like it. If a lawyer is going to take a rape case to trial s/he needs a lot more than this. Of course, sexual abuse cases often get tried because of the double jeopardy involved in your client having to registered as an SRO. At the very least you have to give him (or sometimes her) his day in court.

  • HANSENWT||

    But that takes a lot of power away from the Feminists culture....lean has been to use title IX for any affront to women at college and a campus is in violation if a women feels affronted. title IX is supposed to protect men as well but the Obama guidance insinuated that women have all the power...and it is just like many other things you are seeing played out....racism for example has nothing to do with weather or not the labeled "racist" did or knew of doing or said or knew of saying something racist...only if the "victim" took it as racist or a third party the "victim" tells believe's it is racist. This mentality shifts all the power to the victim...and many feel that is the correct thing to do but obviously some will take advantage of all that power to shape their narratives and causes. Justice is not supposed to allow that.

  • BYODB||


    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


    Sorry, no. There's one step that needs to be taken, and that's torching Title IX to the ground and salting the ashes. This is the same type of incremental thinking that ended up getting the ACA more or less set in stone.


    Why is an education organization charged with determining who broke the law, and meting out punishment on their own? Oh, right, it's because they want to do an end run around the bill of rights. Clever girl?

  • damikesc||

    BYODB, you left out pissing on the embers before salting them...

  • DiegoF||

    Directed urination is penis privilege. Unless of course you are a trans woman, in which case you have experienced no privilege whatsoever. Unless you are talking to a black trans woman, of course.

  • Rigelsen||

    Get on Congress's case into doing just that. Unless it's somehow reinterpreted to benefit men as well. (Yes, I know that it's suppposed to be sex-agnostic. It has rarely worked that way in practice.)

    I mean, how much sense does Title IX even make in a world where women make up 60%+ of higher ed matriculations? There's got to be some structural sexism behind that, right?

  • BYODB||


    ...how much sense does Title IX even make in a world where women make up 60%+ of higher ed...


    Arguably it still makes sense with the assumption that it's gender neutral, but somewhat ironically societies reflexive impulse to protect women over men serves to double-secret protect women in these types of situations. Bad actors exist, but there are already remedies of law that make this largely an irrelevant piece of 'guidance'.

  • JoeJoetheIdiotCircusBoy||

    I would argue this isn't "incremental thinking" as much as this is "mission creep". Title IX was originally designed to monitor discrimination between the sexes on college campuses. I seriously doubt there is a whole lot of that going on any more...especially given that women far outnumber men in terms of student body (and those who graduate). Rather than saying "job well done" they have to fine another way to justify paychecks...and bigger budgets.

    Oh, and technically an education organization isn't charged with determining who broke the law. Title IX investigations don't send people to prison as far as I can tell.

  • HANSENWT||

    The problem is not Title IX, the problem is the incorrect interpretations of it and no oversight for those who want to purposely teach the wrong thing or that everything is a micro aggression or dog whistle for something really bad and so those should be just as punished as the actual crime....Read the USC case highlighted above...that puts it into perspective...the victim goes from agreeing that what happened with the accuser was consensual to blasting USC not doing enough to protect her from him....you can tell she was taught to believe what she now believes....that's the problem and unfortunately when we conflate the wrong things it actually makes it worse for the victims of the more serious crime....if you read this, one actually wonders how anyone that attended USC at the frat house was not in violation of failing to intervene...when the law or universities are selective like this it should raise immediate doubt to the liability of the accused actions.

  • Just Say'n||

    "Due process is literally fascism!"

  • Just Say'n||

    The #resist is overflowing with clowns. But, not the funny kind. More like those disturbing mimes that only the French enjoy

  • DiegoF||

    The artistic heritage of Irish mime is a rich one, if narrow in subject matter. Most works are one-run originals, performed nightly for an gallery of only a few dozen (i.e. immediate family) in private dwellings with universal audience participation, and consist solely of wild fantasy sequences in which the audience-performers eat imaginary food.

  • lap83||

    At least a French mime will keep their mouth shut and make me an invisible sandwich

  • DiegoF||

    Wait this is a Robby article, not an ENB one. Are we expecting Soave to serve us food during the game now too?

  • MatthewSlyfield||

    Or the seriously disturbing sad clown paintings.

  • HANSENWT||

    Your probably throwing a bone, but spoken like a true ANTIFA nonetheless.

  • ||

    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

    Drawing imaginary lines and insisting that the governing body holds no sway outside those lines? Next, you'll be saying absurd shit like *they* should get to pick and choose who, inside the line, they'll take responsibility for and who they won't. I find that to be racist.

  • Big Ed's Landing||

    "that has been reported to have taken place on their campuses or in their programs..."

    This makes perfect sense. If you get robbed in Illinois, Wisconsin doesn't prosecute the perpetrator. If someone is raped in Milwaukee, they don't get prosecuted in Chicago. Our society has tons of jurisdictional boundaries, and universities should only be responsible for things that happen within their boundaries or at officially sponsored events or in university affiliated organizations like sororities and fraternities with off-campus housing. Most students are legally adults, and what they do to each other off campus is first and foremost the jurisdiction of the town / county / state where the crime takes place.

  • Real American||

    ...and many progressive feminists are fuming.

    I'm sold.

  • damikesc||

    Personally, the idea that progressive feminists are unhappy seems unlikely. They are such a happy bunch.

    ...and they think highly of men.

  • Tony||

    In the spirit of "only Nixon could go to China," perhaps we should wait for a non-rapey president before we turn colleges back into rape factories.

  • DiegoF||

    Fortunately, the spiraling, government-loan-fueled prices are causing more and more young people to boycott Big Rape entirely. Nowadays you can get small-batch, artisanal rape sourced much closer to home.

  • Just Say'n||

    Colleges were never "rape factories", but your opposition to due process is comical

  • DiegoF||

    If they were they could at least have the social responsibility to hand out lambskins instead of sheepskins.

  • Rigelsen||

    They are in Tony's imagination. You shouldn't step on his fantasies like that.

  • Tony||

    Twas a joke.

  • D-Pizzle||

    It should be telling that no one thought you were joking.

  • fdog50||

    Would that it 'twere.

  • Jack Klompus Magic Ink||

    A word that almost describes you as well as the phrase "malignant retard."

  • geo1113||

    Hey asshole, if colleges were rape factories, parents wouldn't send their daughters there.

  • Rigelsen||

    Yeah, this rape factory business, or the "20% will be raped before they graduate" never made sense. Maybe you're a misogynist who argues that young women are too infantile to evaluate that kind of risk, but what parent would take that risk with their precious daughter? What's the theory here, that parents are too stupid or malevolent too?

    Anyway, considering women are matriculating college at higher and higher rates, if Title IX is to mean anything, it should put trying to get and keep men in college for a while.

  • FlameCCT||

    What's the theory here, that parents are too stupid or malevolent too?

    Perhaps the words of that famous philosopher, Forrest Gump, apply:
    Progressive is as Progressive does!

  • Longtobefree||

    Only the male half of the parent group is stupid and malevolent

  • Fuck you, Shikha (Nunya)||

    They never wanted to matriculate with me.

  • soldiermedic76||

    So Bill Clinton? He was accused of rape?

  • TrickyVic (old school)||

    Yeah, but his wife defended him and tried to discredit his accusers.

    It's hypocritical to be a member with #metoo and #stillwithher.

    But liberals are so woke

  • Sevo||

    "In the spirit of "only Nixon could go to China," perhaps we should wait for a non-rapey president before we turn colleges back into rape factories."

    In the interest of attempting to impersonate a sentient being, maybe once you could post something which isn't an outright falsehood, shitbag

  • Longtobefree||

    You sell Tony short. It is (theoretically) possible that so many servers are running that bot that it has become sentient.

  • UnrepentantCurmudgeon||

    Trump was not a rapist (unlike Clinton), merely an unregenerate horndog (like Clinton and Kennedy)

  • HANSENWT||

    The media is to blame for JFK assassination. Had they of fairly and aggressively pursued Kennedy in the negative light of Trump (and yeah they knew), he may never have been elected or even won the nomination (see Herman Cain, far less and done). Camelot was a farce. But that is the difference the media played up JFK's personality like Bill Clinton etc....so be careful of what you think you know.

  • majil||

    They are not "botching facts".They are straight up god damned liars

  • Hank Phillips||

    The only controversy of the Obama Administration was its clear message that American voters would rather have a socialist Sand Person in power than a girl-bullying mystical bigot whack job struggling to being back national prohibition and the Comstock laws banning birth control, contraceptives, brassiere ads and motherly advice on all such matters. Here's hoping the Libertarian Party platform committee realizes on this opportunity to distance ourselves from Christian nationalsocialism without embracing its Gulag-populating competitors.

  • Fuck you, Shikha (Nunya)||

    You don't see the irony in your statement at all, do you?

  • HANSENWT||

    no he doesn't....I have note Victoria Secret's is having problems though staying afloat so those ads are appearing less. Is it all a big Christian Conspiracy? (sarcasm)

  • Sir Chips Alot||

    Why are universities involved in this at all? We already have police and courts to handle this.

  • dchang0||

    "Why are universities involved..."

    It's because the man-hating feminists on the left know that many claims of sexual assault will not win in the courts and thus are trying to move to where they have home-field advantage: the leftist indoctrination camps euphemistically called universities. There, they can set the bar so low that every accused man is punished, even if the accusations are completely false, while they can also defend women, especially feminist professors, from accusations of sexual assault.

    This is all about power, not about justice.

  • Taito7||

    Do they botch the part about her buying her position and how fucked up her policies worked in the MI schools? Do they botch the part about her being an idiot? The only 2 Devos positives, is 1. Maybe we can eliminate the burecracy surrounding our school system draining money from the actual learning processes and get it back to a local level 2. Bear attacks are way down.

  • UnrepentantCurmudgeon||

    DeVos is an idiot? She probably at least knows to match verbs and subjects, eg: "The only 2 Devos positives, is …" If you don't know that should be "are" then you need either to tone down your rhetoric or go back to your ESL classes

  • Naaman Brown||

    Standard left wing talking point:
    "Betsy DeVos Says Guns Should Be Allowed in Schools. They Might Be Needed to Shoot Grizzlies"

    A school in Wyoming had a fence specifically to protect from grizzly bears, DeVos remarked that in Wyoming grizzly bear country, someone near the school would probably have a bear gun if the fence failed.

    Oops. my reply was 204 characters, beyond the Twitter limit.

  • HANSENWT||

    1) She did not create policy anywhere much less Michigan...she is just an advocate for charter schools and helps municipal education systems consider those. She has been on various national think tank type education panels that advise and advocate to policy consideration. She was recommended to Trump by the Bush's nonetheless (so pretty sure she didn't buy the position). My guess is you will vote for Cory Booker if he is the DNC candidate and he worked with DeVos as Newark NJ Mayor to bring her ideas there and sang her praises....of course now she is awful if he wants your vote....so please remember a vote for Cory B would make you a giant hypocrite on your narrative above.
    2) The bureaucracy draining money from the schools starts at the state level not the federal level so DeVos has nothing to do with how your state spends its money.
    3) I do agree with you that bear attacks seem to be on the decline...a little educational tip...don't stop and take photos, they seem to hate cameras...I think they are progressive liberals.

  • The gouch||

    Just another misguided LIBRATURD!!!!

  • The gouch||

    Just another misguided LIBRATURD!!!!

  • The gouch||

    Just another misguided LIBRATURD!!!!

  • Galane||

    They aren't "botch(ing) basic facts" or any of the other wishy-washy prevarications written in the article. They are flat out lying about what's in the proposed changes in order to push their misandrist agenda.

  • DrZ||

    ""unwelcome conduct of a sexual nature""

    I can see it now..

    "What did he do to you"
    "Why, why he asked me out for a date and man is he ugly. Anyone that ugly should understand this is an unwelcome conduct of a sexual nature. Besides he did not own a car".

  • Longtobefree||

    "We were getting blind drunk at the frat party, and when he passed out, he brushed by my butt on the way down."

  • HANSENWT||

    and I have seen that play out in sexual harassment cases...very close to that and it was considered irrelevant that the victim went out with other co-workers....but she didn't like this one so it was sexual harassment...and spare me the "there must have been more to it"....I was on the board to help adjudicate the complaint...and I have dealt with the real sexual harassment cases as well....and these bogus cases take the focus off the ones we need to look at to help keep your daughters safe. The problem with the bogus cases are that we don't teach what is and what is not real sexual harassment....or at lower adjudication levels when someone complains you have someone with an agenda that takes it to a whole new level instead of taking care of it at that level if it can be. Someone can do or say something inappropriate and it not be racist, sexist, homophobic, etc....

  • ipsum||

    I think Miss DeVos is doing and outstanding job.

  • HANSENWT||

    I have no idea what she is doing....have great reservations about her abilities to do the job. I also have reservations about someone who is for charter schools in charge of DOE (charter schools basically mean we have given up on public schools and are not going to hold them accountable). Charter schools if federally assisted also divert that money from public schools. If the public schools were funded correctly and held accountable you wouldn't need charter schools. I do agree with her on "two sides to an argument" like above so there's that.

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  • Sewblon||

    Both standards are wrong. Just amend the Obama rule to read: "Knowingly unwelcome conduct of a sexual nature." So don't punish people who incorrectly think that the counter party is into them due to simple misunderstandings. But do punish people who knowingly make others uncomfortable.

  • HANSENWT||

    I agree with your premise of intent. We have had a shift where intent does not matter. Just what the victim or 3rd party thinks was intended or depends on what race color creed sex says or does it....again selective and narrative but that is the intent of the progressive left...to hold all the power and dictate what you can and cant do or say based on a select groups perception of feelings. Go ahead and vote for them and be careful what you wish for is what I always say. I do find it quite fun to watch the various left groups cannibalize each other when the narratives cross.

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