For nearly a decade, college students have had their constitutional rights infringed simply by stepping onto campus. On Wednesday, however, Education Secretary Betsy DeVos released new Title IX guidelines that seek to restore those rights to students.
The new guidelines help restore truth and fairness in college Title IX proceedings, which adjudicate claims of sexual misconduct. The Obama administration in 2011 issued guidelines that required schools to use a preponderance of evidence standard (50% plus a feather) to determine whether an accusation is truthful, and later discouraged the use of cross-examination to determine the truth. The Obama administration also fostered a climate where schools were forced to “believe all women” for fear of bad publicity should a woman claim she was a victim and the man she accused not be kicked off campus. The most famous example of this was Emma Sulkowicz, also known as “Mattress Girl,” who received national attention even though her allegations were dubious.
One of the most sorely needed new rule requires schools to actually inform accused students that an allegation has been made against them and the specific details of that allegation. Previously, many schools required accused students to give a statement in their defense before even learning the allegations against them.
The new regulations also include the presumption of innocence for accused students, which does not, contrary to what activists say, mean the school begins by disbelieving accusers. It means, just as it does in the American legal system, that both sides are believed until evidence suggests otherwise.
The new rules also abolish the single-investigator model praised by the Obama administration, which allowed one individual to act as investigator, judge, jury, and executioner in Title IX cases. Almost exclusively, these individuals were trained to believe accusers and were given sole discretion on what evidence to consider – with predictably disastrous results. Given, even schools that provided hearings to students and allowed others to judge ignored exculpatory evidence.
The new rules require the person who makes the final decision in whether an accused student is responsible to be different from the person who served as the investigator. Further, a finding of responsibility can only come after a hearing is held and a representative for the accused is allowed to ask questions of the accuser. In the justice system, this is known as cross-examination, but on college campuses, it is either strongly hampered or completely disallowed. In many cases, an accused student submits questions to the hearing panel to ask the accuser, but the hearing panel ignores the most important questions that would show discrepancies in an accuser’s story.
Evidence must also be made available 10 days prior to the hearing, allowing both accusers and the accused time to examine it. A transcript of the hearing must also be kept, something that has not happened, which hurts any student coming forward to claim unfairness.
Beyond the sexual assault aspects, the new Title IX rules also help free speech by limiting what can be investigated as a violation of Title IX. The Obama administration’s definition of sexual harassment was simply “any unwelcome conduct of a sexual nature,” while DeVos’ rules align the definition closer to the Supreme Court’s decision in Davis vs. Monroe County Board of Education, which held that harassment must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” This definition would cut most allegations of sexual harassment.
The DeVos rules insist sexual harassment must be severe, pervasive, and offensive to a reasonable person.
“This new rule strikes a powerful blow against campus censorship,” an Education Department spokesperson said. “Campus free speech must not be sacrificed in the misguided pursuit of any other value.”
The new rules also ensure that schools won’t investigate potential Title IX violations if the accuser does not want them investigated. Previously, any school official made aware of any possible violation had to report it to the Title IX office, which would then be required to investigate whether the accuser asked or not. DeVos’ rules still require potential violations to be reported to the Title IX office, but limits what that office can do in response. Instead of immediately launching an investigation, the office will now reach out to the accusers and offer support, but it cannot adjudicate unless the accuser or their parents/guardians lodge a formal complaint. This means schools can no longer go against accusers who don’t want their claims investigated.
Predictably, so-called women’s rights groups are misrepresenting the new rules as an assault on “survivor’s rights,” without explaining what exactly those “rights” are. One wonders whether these groups think due process should be abolished in this country, making way for pitchfork justice.
Attorney Andrew Miltenberg, who has represented numerous high-profile students accused of sexual misconduct, including the man accused by Sulkowicz, explained what happened to students under the Obama-era rules.
“Since 2011, for men accused of sexual harassment or nonconsensual sexual activity, college campuses had come to resemble a circle of hell in Dante’s Inferno. All it took was for someone to point a finger, anonymously or otherwise, and a male student would find themselves caught up in a system that was, at best Orwellian,” Miltenberg told The Daily Wire. “The specifics of the charges were illusive; access to evidence was severely limited, the investigation was borderline incompetent or meant to limit the accused from defending themselves, and the hearing was nothing short of a North Korean show trial. Findings of responsibility all too often came with little or no reasoning as hearing panels and investigators engineered the process to achieve a certain result. The sanctions that followed that result were punitive at best and could easily derail an education and be a bar to any number of career choices.”
Justin Dillon, another attorney who has represented students accused of sexual misconduct, praised the new rules to Reason’s Robby Soave.
“Nothing Betsy DeVos has done since she took office will have a more lasting effect on people’s lives than this,” Dillon said. “It’s frankly inspiring to see how hard she and her staff have worked to get these regulations done and get them right.”
DeVos rescinded the Obama-era guidelines more than two years ago, and was met with obstinance from college administrators. It is likely that schools will continue to oppose the new rules and insist on adhering to the old “guilty until proven innocent, but even then still guilty,” standard of the Obama administration.
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