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Betsy DeVos Formally Unveils New Title IX Rules: 3 Ways They Will Strengthen Due Process on Campus

Cross-examination, stricter definition of misconduct, and greater flexibility

DeVosLEAH MILLIS/REUTERS/NewscomThe Education Department has officially released new rules on how to enforce Title IX, the federal statute that forbids sex and gender-based discrimination in public schools.

This guidance will replace an approach, established under the Obama administration, that threatened free expression on college campuses and due process rights for students accused of sexual misconduct. Unlike the Obama-era guidance, the DeVos policies operate in accordance with basic principles of fairness. They are a massive step forward. If colleges are going to be involved in the business of adjudicating sexual assault, this new approach is vastly preferable.

A draft of the new proposals was released in September; the final version differs slightly, according to an Education Department spokesperson familiar with the process.

The biggest change since the draft proposal is that the increasingly popular single-investigator model of sexual misconduct adjudication—in which a sole administrator was charged with investigating the allegation, preparing a report on the matter, and passing judgment—is no longer permitted. Universities will be required to provide a separate decision maker, either an individual or a group, to determine an accused student's guilt.

A less welcome development is the appeals provision: Under the new rules, both the accuser and the accused will still be able to appeal the outcome of a Title IX decision. Civil libertarians opposed this idea. In the criminal justice system, only the defendant can appeal a guilty verdict; holding an additional trial after a finding of innocence constitutes double jeopardy.

But in other important respects, the new rules are a vast improvement over what existed previously. Here are three ways the new DeVos rules will make campuses freer and fairer places:

1) They define sexual misconduct more narrowly. Under the previous system, administrators were obliged to investigate any unwanted conduct of a sexual nature, which is a fairly wide swath of behavior. Some officials even interpreted this to include mundane speech that happened to involve gender or sex. But the new guidance specifies that Title IX is only infringed when conduct is severe, pervasive, and objectively offensive. (Violence and quid pro quo arrangements are also prohibited.) An administrator with knowledge of a potential Title IX violation does not need to follow through with an investigation if the allegation does not satisfy these criteria.

2) The new rules mandate cross-examination. Previous guidance did not explicitly forbid cross-examination, but it heavily discouraged the practice due to concern that questioning an alleged sexual assault survivor would be re-traumatizing. The new rules state that neither the accuser nor the accused need to be physically present in the same room, but their attorneys—or support persons provided by the university—must be allowed to submit questions on their behalf for the other party to answer.

There are some exceptions. Neither party may ask questions pertaining to their previous sexual history with other partners. This is consistent with state and federal "rape shield" laws which also limit such questioning.

3) The new rules let colleges set their own evidentiary standards but require similar standards for non–Title IX adjudication. Currently, universities must adjudicate sexual misconduct under a preponderance-of-the-evidence standard: The accused is found guilty if there is 51 percent certainty that he or she is guilty. Henceforth, universities may use either this standard or the clear-and-convincing standard, which requires greater certainty. I am skeptical that many administrations will return to the higher standard of proof, which opens them up to criticism from feminist activists who think they aren't doing enough to punish rapists. However, the new rules stipulate that a university must use the same standard for Title IX as it does for other matters—even ones involving the faculty. If academic misconduct is adjudicated under a clear-and-convincing standard, sexual misconduct must be handled in such a manner as well. This could create pressure to adopt higher standards uniformly.

There are other boons for advocates of due process. The jurisdiction of Title IX will be limited to events that transpire on campus, or are properly described as school functions. The new rules also recognize differences between K-12 education and college: K-12 teachers, for instance, must initiate investigations if they become aware of sexual misconduct, whereas college professors are not necessarily on the hook—at the university level, misconduct must generally be reported to the Title IX office for an investigation to unfold.

These rules will undoubtedly infuriate the Title IX activist movement, which has worked tirelessly to strip accused students of fundamental due process protections in the name of combating the campus rape problem. NARAL, a pro-choice feminist organization, tweeted Thursday that "a new rule from Betsy DeVos would require universities to allow accused sexual abusers to cross-examine and re-traumatize their victims. This is absolutely sickening." This is misleading—the new rule only requires universities to allow the accused to question their accusers vis a vis an intermediary. Nevertheless, Rep. Joe Kennedy (D–Mass.) retweeted the comment, adding, "No survivor should be cross-examined by his or her accused rapist. Ever. Full stop." This is a curious statement; in the criminal justice system, an accused rapist who is representing himself already enjoys the right to question his accuser.

Reforming Title IX is largely a thankless task, given that those helped by these reforms—men accused of sexual misconduct—are an unsympathetic lot. Most of the people who are very invested in Title IX as an issue are victims' rights advocates who see any attempt to re-balance the scales of justice as a sexist attack. There's a tempting narrative here—"Trump administration changes law to hurt women"—that will undoubtedly fool many who are unfamiliar with the specifics of Obama-era Title IX abuse. Missing from this narrative is any acknowledgement of the fact that the previous Title IX guidance had created more problems than it solved: Hundreds of young men have filed lawsuits alleging breach of contract and due process violations. Universities found themselves between a rock and a hard place. They could ignore the federal government, and risk their public funding, or they could ignore students' rights, and risk going to court. This reality wasn't sustainable, and DeVos's administration deserves tremendous credit for taking some steps to address the problem.

It's a tough job, but someone had to do it.

Photo Credit: LEAH MILLIS/REUTERS/Newscom

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  • Reverendcaptain||

    It seems that these changes will open universities up to more lawsuits by the falsly accused if they fail to tighten their criteria. This should result in many of them seeing the light.

  • BambiB||

    TRUMP wins again! (And I didn't even vote for him!)

  • Fist of Etiquette||

    Man, they're wringing a lot out of the text of Title IX. Hopefully the new House majority will not let stand this blatant attack on women's rights and, yes, let's just say it, women's health. Due process was thought up by old white men to maintain their patriarchy and so on and so forth.

  • Inigo Montoya||

    Exactly. Due process, schmue process! All you need to know is "always believe the woman." Period. End of story! Michael Avenatti taught me that; it's the guiding principle of his life, you know.

  • Libertarianitis||

    Are you a woman? I don't know if I believe you.

  • MDP||

    You should know you are speaking to Inigo Montoya. You killed his father.

  • ||

    BUT. You have to be a woman of the progressive flock or else....BURN!

  • Long Woodchippers||

    I still don't see where Title IX covers sexual activity. It was written to make sure each gender had equal access to programs and activities.

  • Don't look at me!||

    All government programs expand to fill any areas not covered by some other government program.

  • Vernon Depner||

    Already being covered doesn't stop them. Sometimes they're overlapped many layers deep.

  • Vernon Depner||

    You don't have equal access unless you feel perfectly safe passing out naked on a vomit-soaked carpet at a frat party.

  • Earth Skeptic||

    Well, you gotta celebrate your new tramp stamp somehow.

  • Longtobefree||

    Exactly.
    All Title IX really required was to take the "mens" and "womens" signs off the showers and restrooms in the athletic building, and let men and women play on the same teams. So no more 'mens' and 'womens' basketball teams, everyone tries out equally for the same team. Same with soccer, and the like. Pull up the womens tees and golf is compliant already. Nothing in there about hiring a bazillion more administrators to stifle due process, or anything like that at all. Of course, there would be redundant coaching staff, but they could always give up their high paid jobs and go back to teaching, right?

  • MatthewSlyfield||

    Only the men's football and men's basketball coaches make more than a regular professor. These are the only two sports that are revenue centers for the University.

  • mpercy||

    And in many cases, their salary from the university is fairly normal for a high-level university employee. But their additional compensation from the privately-funded booster organizations (i.e., not out of the taxpayers pocket) and their endorsement contracts pump up their total compensation tremendously. Of the 65 schools in the Power Five conferences, 39 pay their coaches through a separate organization. For example, the University of Florida pays its coaches through a separate section 501(c)(3) nonprofit entity called the University Athletic Association.

    James Ramsey, the President at University of Louisville has a salary of $4.2M, Nathan Hatch at Wake Forest has a salary of over $4M. Close to 60 private universities have presidents making over $1M, and a number of public presidents have compensation north of $1M. About 125 presidents of pubic universities have salaries higher than the salary of the President of the United States.

  • Social Justice is neither||

    Gender? no. Biological sex, yes.

    Nowhere in the entirety of the Title IX law is gender referenced. It's been shoehorned in by the same people that lecture constantly that sex is not the same as gender.

  • BambiB||

    Hopefully the new House majority will strangle itself while sucking its own cock.

  • Gibbs78||

    Please explain how?

  • damikesc||

    I find it baffling that the CBC is on board with the basic elimination of due process at college. I'm glad there is no history of that impacting minorities.

  • Inigo Montoya||

    They checked and made sure there's no history of that. They are confident it's never had a negative impact on any black guys. They are willing to HANG their reputations on it, that's how confident they are.

  • NicholasStix||

    I saw what you did!

  • Magnitogorsk||

    If only we had some sort of public, taxpayer funded system to investigate and punish criminal acts, the colleges wouldn't even need to worry about all this

  • Don't look at me!||

    Yes, someone elected to judge things of a legal matter, perhaps there would be room in a court to set up a bench of some sort to sit on.

  • loveconstitution1789||

    Expect more pre-January 2019 rollbacks. This way the House Democrats are lame geese for two years. The Senate just wont approve anything they vote for.

    Except bloated budgets. There are still plenty of RINOs to vote for bloated budgets.

  • Longtobefree||

    " bloated budgets "
    Redundant.

  • loveconstitution1789||

    Betsy DeVos, another win for the Trumpster.

  • Vernon Depner||

    those helped by these reforms—men accused of sexual misconduct—are an unsympathetic lot.

    They have mothers, sisters, aunts, wives, and girlfriends who worry about men they care about being victimized by university kangaroo courts. And, they are disproportionately Black. Not surprising that they have a constituency.

  • Inigo Montoya||

    Those mothers, sisters, aunts, etc are just being bullied into going along with this awful patriarchal structure. They wish they could be free to rally around any/every woman, no matter how rotten, but those backwards goobers keep them in check with threats of force. You see, the key idea the women need you to understand is that they can't make up their own minds: any wrongthink must not have been their choice.

  • lap83||

    "Reforming Title IX is largely a thankless task, given that those helped by these reforms—men accused of sexual misconduct—are an unsympathetic lot."

    Uh, wtf? If you can't sympathize with someone being victimized by a corrupt court system that prioritizes identity politics over justice, I have to wonder if you are capable of sympathy at all

  • Warren||

    You can't sympathize with men. Didn't you get the memo?

  • Erisian||

    Especially older melanin deprived men.

  • MoreFreedom||

    Like Brett Kavanaugh, they are unsympathetic until they get a chance to defend themselves, point out the lack of evidence against them, and point out the lies of the accusers. Then the accusers get nice bonuses like a gofundme account, awards for bravery, and moral support.

  • Warren||

    You still have bureaucratic administrations adjudicating what should be a police matter. Universities should have no involvement in students' sex lives period. This new rules may be better than the old rules, but they're still unacceptable.

  • Deconstructed Potato||

    Watch my sister get upset and interrupt her boyfriend at work or wake him up at 3am to MAKE HIM UNDERSTAND just how OUTRAGED she is by all this. Her argument against Betsy DeVos was that she has too much money and therefore is automatically unqualified because reasons and it is all an evil conspiracy because reasons. She constantly identifies as "centrist", usually several times in one sentence, while delivering her tirades. I'm hoping it's something she grows out of. I am, or course, a poor soft-headed idiot to be pitied/scorned for believing anything different to her orthodoxy. On the odd occasion I have engaged her, in good faith, in reasonable discussion, she always ends up putting words in my mouth and clearly ha no intention of listening to me, because she hears certain trigger words or something and tells me I'm some sort of extremist based on her stratospherically hyperbolic and incorrect assumptions about what I'm saying. Does anyone else have an immediate family member this deranged? Family is number one and you've got to look out for each other, but in this instance it's easier from a distance.

  • Deconstructed Potato||

    Cool story bro/way OT etc

  • LarryA||

    I have, over the course of my 70+ years, yet to find a family that doesn't have relatives who are easier to love from a distance. The problem always fixes itself, sometimes before said relative dies, sometimes after.

  • DesigNate||

    Your sister is Kirkland?

  • DrZ||

    To change the subject, but illustrate the trigger words thing...

    I was standing in a field in California with a couple of other people inhaling the thick smoke from the NorCal fires.

    I heard one fellow say it's because of global warming. I responded by saying that a significant factor is the fact that California has been Smokey the Bear for decades and this has allowed a big fuel build up. Actually I said it politely, I didn't use Smokey's name in vane.

    His response: "Isn't that what Trump believes"

    No, idiot, it's what several forest manager types have been saying for years before Trump was president. I can't believe how stupid some people are in the name of not abandoning a political allegiance. It's a sad situation.

  • vek||

    My most recent EX-girlfriend got to being about this level of stupid. We dated for almost 6 years, and in the beginning she actually was kind of centrist-ish. Center left probably, but not too crazy.

    Then along came Trump, and she just completely bought into all the insanity the hard left has been selling. She stopped being able to have a rational conversation about gun rights, which previously she had been able to. Then basically everything else. I'm pretty sure Trump is a big part of why we ended up breaking up when we did. I mean it probably should have happened sooner anyway, but it was comfortably chugging along... But she kept getting more and more unhinged about stuff, and every time stuff would come up she would freak out because I wouldn't magically bend to her illogical arguments, and would shoot her nonsense down in flames, albeit very politely. I'm pretty sure she started thinking I was LITERALLY HITLER for not agreeing with her on everything, despite that she knows I didn't even vote for Trump. Even GayJay voters are too hard core for the left now, and are also LITERALLY HITLER.

    Some people are just idiots/sheep. It is the way of the world.

  • NicholasStix||

    Deconstructed Potato: "Does anyone else have an immediate family member this deranged?"

    Yes. Sometimes, it takes breaks of 20 years at a time.

  • BYODB||

    So, we're sticking with rape being 'tried' in kangaroo courts eh?

  • Tionico||

    so kangaroos are attempting rape on the volleyball courts these days?

    ¿Hoodathunkitt?

  • Earth Skeptic||

    So where are we now on the women are equal in every way/women are special and must be protected spectrum?

  • Longtobefree||

    At both ends. It depends on the needs of the moment.
    Except for the one who qualified for Green Beret training; no one needs to protect her. I hope she makes it, it is a necessary military function, and a great career enhancer.

  • Dillinger||

    perpetual half-pipe.

  • MikeyParks||

    I have a better idea. Do away with Title IX completely. It was always a concoction of the radical feminist Left.

  • MoreFreedom||

    Even better than getting rid of Title IX, is to separate school and state. That means taxpayers will no longer be subsidizing schools, or protecting them from competition. Then free market incentives will kick in, rather than political incentives driving universities.

  • loki||

    The whole idea of title lX is bogus on its face. Any sexual encounter that can't be handled with a simple "Go fuck yourself!" should be left to actual criminal or civil courts.

  • DrZ||

    "The whole idea of title lX is bogus on its face. Any sexual encounter that can't be handled with a simple "Go fuck yourself!" should be left to actual criminal or civil courts."

    Bingo - you win!

  • Vernon Depner||

    But what if you "freeze" and can't say "go fuck yourself"?

  • markm23||

    Then you are unable to handle normal life and must be institutionalized for your own protection. Or at least kept away from large groups of young people who are still trying to figure out the limits, such as college students.

  • John Rohan||

    Wouldn't it be simpler for colleges not to investigate these things altogether? Their job is to educate, not investigate. That's what police departments are for.

  • No Longer Amused||

    But in all honesty, colleges should NOT be in the business of playing mini-justice system. Crimes are for the police to deal with.

  • Olga||

    Have you ever gone through the court process of a sexual assault case. It is basically useless and that is why college campus have tried to step in. Should a woman have to share a dorm or see her rapist in class every damn day? That is the question.

  • Rossami||

    Should a woman have to share an apartment complex with the person she accused of rape? Should she have to see him at the grocery store, the bus station or at work every damn day? What makes colleges suddenly different from every other environment? Why should we expect college bureaucrats to step in when literally everyone else relies on the judicial process?

    If you really think that the court process is "basically useless", Olga, then that is the problem you should be trying to fix. Anything less is a disservice to the much larger number of women who are not currently in college.

  • MoreFreedom||

    Another problem Olga might work on, is educating women in avoiding situations in which they might be raped, and if they are raped, what to do to make sure the offender is successfully prosecuted.

  • John Rohan||

    Then that's a problem to fix on the police side. The answer shouldn't be to rope the colleges into doing it.

  • Olga||

    Why not just get rid of everything. Women you are on your own. Always bring a buddy to a frat party. If you punch a guy in the balls, we will assume he deserved it. It might result in both men being careful to protect their balls as they are afraid of embolden women hitting them in the nuts at every moment and eventually they will realize this is how women feel about rape.

  • Vernon Depner||

    The purpose of frat parties is to have drunken sex with people you just met. If you're not interested in that activity, there is no reason for you to be there.

  • Red Rocks White Privilege||

    Check out Little Miss Wilting Flower here.

    Funny how feminists both simultaneously need to be protected, yet can still "do anything a man can do". If feminists ever had to actually live by the rules of a man's world, with no special protections codified into law, they'd beg to be put back in the kitchen.

  • Vernon Depner||

    That's putting it a little strongly, but women do tend to be oblivious to all the slack they're cut and the extra help they get compared to what is expected of men.

  • ||

    Does that apply to Betsy DeVos as well?

  • Vernon Depner||

    I don't know—we've never met.

  • vek||

    It's really not though Vernon.

    The fact is women are woefully inadequate at competing with men in the majority of situations. Physically, mentally, etc. It's simply our biology. Women can out compete men in some situations too in areas where they have strong suits... But men simply come out on top in probably a strong majority of situations.

    I'm getting tired of even paying lip service to the nonsense idea that this isn't the case. I'm sorry evolution didn't make us more equal... But our natural strength, the way our brains are wired, the differences in IQ distribution, etc all add up to men being better in MOST situations than women. This will ALWAYS be the case, barring radical genetic manipulation of the human species.

    This isn't to say there aren't exceptional women than can best men in male dominated areas... There are. But at a statistical level, they just can't. We need to go back to accepting reality for what it is, and allowing the exceptions to have the freedom to rise, and the rest to STFU and stop complaining that they can't hang with men.

  • ||

    Are there any significant protections codified into law? I mean in theory, the fact that many neutrally worded laws and regulations are in practice applied in a one-sided way is a different matter.

  • Vernon Depner||

    Just off the top of my head—in many states, the mother of an unwanted newborn can simply drop it off at any firehouse or emergency room and walk away. Fathers of newborns can't.

    Here's an example of a federal law:
    http://legcounsel.house.gov/Comps/DOMVIOL.PDF

  • ||

    A good point, although I believe the law exists for the protection of the newborns, who happen to be in the imediate presence of their mothers right after birth, while these mothers are often, for objective reasons (postpartum psychosis and so on), in distress that can lead to horrible things. If a father willing to care is nearby while the child is being born, such thing would most likely not happen, and if it does, he can still go there and pick the kid up. But yes, it would be better fathers who have suddenly found themselves with a newborn in their arms (the mother died in childbirth or decided to simply run away) had the same option.

  • ||

    As for violence against women, I agree laws protecting them should equally protect all victims.

  • Incredulous||

    Yea, why the %^$& would NARAL have an opinion on this? They need to stick to their business of protecting the right to kill babies and STFU. Their opinion made no %^$ sense anyway. "Re-traumatize their victims?" WTF? They've already assumed guilt.

    Then, the idiot Joe Kennedy doubles down on this imbecility.

    All these Senators and mobs of women who just want lynch men. WTF?

    WTF is happening to our society?

  • DrZ||

    So, why didn't they just turn the case over to the courts. Why a university proceeding at all?

    Courts handle rape cases all the time. Aren't students being short changed on the due process stuff if they cannot go before a "real" court?

  • ||

    They can go before a real court if the case is reported to the real police and real evidence exists. The point of these kangaroo courts is to expel them from school, even if there isn´t enough actual evidence against them to convict them of rape, so that their presence isn´t too traumatizing for their actual or alleged victim. A perversion of justice, I know. As someone stated above, a person raped by their neighbor has no "rights" coparable to this bullshit.m

  • Desmond Ravenstone||

    I find it ironic that many campus activists who protest the retributive nature of our interlocked law-enforcement, judicial and prison systems fail to see the retributive nature of the procedures they defend under Title IX. If the axiom that "more punishment does not yield less crime" applies to the world outside of academia, then why should it be different within it?

  • Philo||

    I find it interesting that MSNBC (and maybe others, I don't know), decided to ignore this actual news about DeVoss and instead decided to go with a synthesized (dare I say "fake"?) story about the outrage of how her office is spending $17M on her security. Apparently, according to the reporter, that while the reason given is that there were a few credible threats on her life last year, the reporter was not informed of any more recent ones.
    I decided to examine the premises of this story, using some critical thinking even though it has given me a real migraine for my troubles.
    First, the ides that the money that is being spent on DeVoss is to be considered some sort of unneeded perk is bizarre in itself. How enjoyable is it to have a bunch of armed spooks cramping your style when travelling, particularly if they are unneeded? And, if they are needed and required due to the exigencies of her job, what does her net worth have to do with whether she pays?
    Another note that may be interesting for the reporter to have examined is; the Education Dept., as bizarre as it may seem, has within the agency, an armed sector that has existed before the Clinton administration. Was the money spent on Devoss taken from their budget? Or are they still held in abeyance should some right wing group forget to include enough of the history of some favored group in a 5th grade history exam?

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