Following the confirmation of Justice Brett Kavanaugh to the Supreme Court, the Senate Judiciary Committee referred several of his accusers to the Justice Department for lying to Congress, reminding us that the importance of taking accusations of sexual assault seriously must be balanced with a presumption of innocence for the accused.
It is precisely that balance that the U.S. Department of Education was aiming for when it recently proposed rules, under its Title IX authority, governing how institutions of higher education and K-12 schools handle students' accusations of sexual misconduct.
The overarching goal of the rules, which will have the biggest impact on college campuses, was articulated by Secretary of Education Betsy DeVos: "Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined."
The proposed rules, which will become final after a 60-day public comment period that will likely result in some revisions, are intended to replace seriously-flawed Obama administration guidance on the same subject. That guidance, issued without public input, gave accused students—nearly always male and, as journalist Emily Yoffe has documented in The Atlantic, disproportionately black—little opportunity to defend themselves despite possible expulsion, rescission of job offers and graduate school admission, and other career-damaging consequences.
The Obama era guidance was the result of lobbying by liberal activists who portray sexual assault on campus as an exploding crisis and insist that all accusers must be believed, while dismissing inconsistencies or untruths in an accuser's story as the understandable result of trauma - a theme that should sound familiar to those who followed the Kavanaugh saga. The guidance pressured schools to deny basic due process protections to the accused, while also mandating the lowest possible standard of proof—under which a 50 percent chance of guilt means conviction—and defining sexual misconduct so broadly that it infringed on free speech.
Among the many due process rights commonly denied to accused students were cross-examination of the accuser and other witnesses, which the Obama administration worried could be “traumatic or intimidating," and access to exculpatory evidence and the details of the charges. More than 200 such students fought back with lawsuits against their schools. In fact, the success of many of these suits is one reason Secretary DeVos made replacement of the Obama guidance a priority.
Her proposed rules require schools to respond to any report of sexual misconduct and to investigate every complaint filed, while at the same time correcting the overbreadth problem in the definition of covered conduct and, most importantly, adding much needed due process requirements. These include written notice of the allegations, an opportunity for both parties to review the evidence, the presumption of innocence, the right of cross-examination—subject to the typical "rape shield" exceptions—and an end to the common practice of having a single school official serve as investigator, judge, and jury.
Her proposed rules require schools to respond to any report of sexual misconduct and to investigate every complaint filed, while at the same time correcting the overbreadth problem in the definition of covered conduct and, most importantly, adding much needed due process requirements.
The new rules would also allow, but not require, schools to apply the somewhat higher “clear and convincing evidence” standard of proof. Given the severity of the consequences for students found guilty, many critics of campus kangaroo courts would have liked to have seen the rules also allow the "beyond a reasonable doubt" standard, the one used in the criminal justice system, where non-student claims of sexual assault are normally adjudicated.
One might hope that these common-sense reforms would meet with less resistance from the left than other Trump administration policies, given liberals' championing of due process protections for even enemy combatants and non-citizens residing unlawfully in the U.S. Instead, the Chronicle of Higher Education reports that "Reaction to the regulations was swift, with ranking Democrats in the House and Senate condemning the proposals." A typical response was that of Senator Kirsten Gillibrand of New York, who tweeted that DeVos was siding with “predators over survivors …betray[ing] her responsibility to the students she's meant to serve. It's sickening."
Sen. Gillibrand and her like-minded colleagues fail to understand that only a fair adjudication process can determine who is the predator and who is the survivor, that DeVos is meant to serve male as well as female students—as is Gillibrand by the way—and that ruining the life of a wrongly accused student is as sickening as an unpunished sexual assault. Yoffe reports that she has "yet to talk to an accused student, even one who was eventually cleared, whose life wasn’t profoundly damaged; every one has told me that at some point he considered suicide."
The reaction of liberal activists outside Congress was similar. “These changes are designed to flip Title IX on its head and give rights to accused students when Title IX was supposed to be protecting those experiencing sexual discrimination,” said Carly Mee, an attorney for a survivors advocacy group SurvJustice. Putting aside Mee's mistaken belief that Title IX protects only accusers, it is a shame that critics of the proposed rules see the investigation and adjudication of sexual assault allegations as a choice between protecting women and affording due process to the accused.
As Secretary DeVos points out, “there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process.” "Those are not mutually exclusive ideas," she emphasizes. "They are the very essence of how Americans understand justice to function."