When Education Secretary Betsy DeVos first announced that her department would be reviewing Obama-era guidelines for the handling of Title IX sexual harassment and assault allegations on college campuses, liberal advocacy groups wildly overreacted.
As The New Yorker reported, after DeVos released those proposed new guidelines in November, “It’s On Us, the sexual-assault advocacy group founded by President Obama and Joe Biden, released a video, in December, in which the actress Alyssa Milano compared DeVos to the Grinch and gave instructions on how to ‘return this supremely shitty gift.’”
Now that the new rules are nearing their release date (likely sometime early in 2020), liberal panic has resumed. Former Vice President Joe Biden tweeted, “Our students and educators cannot afford four more years of Donald Trump and Betsy DeVos.” A hyperbolic piece in Vox claimed the final rules “are likely to include a controversial provision requiring schools to allow in-person cross-examination of students who report assault and harassment, as well as accused students.” It decried the fact that schools would be given the option of using a higher standard of proof when deciding guilt or innocence in such cases.
In other words, the new rules would allow students to confront their accusers (a right protected under the Sixth Amendment in criminal proceedings), which, under the Obama-era guidelines, they were not entitled to do. The rules would also allow schools to choose whether to use the weaker, Obama-era standard of proof of “preponderance of the evidence” or the more stringent “clear and convincing” standard.
Campus investigations are not criminal courts, of course, but given the life-ruining results of their decisions for students accused of assault or harassment, it is hardly radical to pursue a better balance between the rights of the accused and accuser in campus Title IX cases. As Harvard Law School’s Jeannie Suk Gersen, who does not agree with all of the proposed changes to the rules, argued in The New Yorker, DeVos’ proposed changes to the Obama guidelines are nowhere near as extreme as advocacy groups have made them sound.
Consider, Gersen notes, that under the Obama rules, “it has become commonplace to deny accused students access to the complaint, the evidence, the identities of witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses.”
Worse, under the Obama guidelines, the presumption of innocence effectively become a fiction on many campuses. “At many schools, including Middlebury College and the University of Pennsylvania,” Gersen writes, “investigators and adjudicators have been trained to ‘start by believing’ the complainant rather than to start from a position of neutrality.” DeVos’ proposed rules would restore the presumption of innocence and “make clear that favoring or disfavoring either party would make a school vulnerable to a finding of discrimination on the basis of sex.”
Nevertheless, victims’ advocates tell Vox the new standard is traumatizing and “absolutely terrifying” for women on campus, even though the revised guidelines would not allow such questioning to be done by the parties themselves but by their “advisers,” and offers the option of questioning via video conference (so that the accused and accuser would not have to be in the same room together).
The Washington Post headlined its story on the DeVos corrective to the Obama-era guidance, “Betsy DeVos poised to issue sweeping rules governing campus sexual assault,” and throughout used words like “controversial” and “contentious” to describe the new rules. (Compare this to the Post’s celebratory coverage of Obama-era changes to Title IX implementation).
But recent history has already demonstrated that it was the Obama administration’s approach to allegations of campus sexual assault that was extreme. As K.C. Johnson of Brooklyn College, who has followed the application of Title IX harassment law on campus for years, noted when the Obama guidelines first appeared, the question of innocent students being wrongfully convicted of assault or harassment was never a question of if, but when: “A 2016 study from UCLA public-policy professor John Villasenor used just one of the changes—schools employing the lowest standard of proof, a preponderance of the evidence—to predict that as often as 33 percent of the time, campus Title IX tribunals would return guilty findings in cases involving innocent students.”
In fact, hundreds of wrongfully accused students have taken legal action. So far, more than half of the students accused of sexual assault or harassment under the Obama-era Title IX guidance who have sued their schools have won (or received settlements from their schools).