De Vos to End One-Sided Campus Sex Rulings

In the debate over campus due process, it would be difficult to overstate the significance of Education Secretary Betsy DeVos’ George Mason speech. No comparable address occurred during the Obama years—former Education Secretary Arne Duncan largely deferred on the issue to Russlynn Ali and Catherine Lhamon, who ran the Office for Civil Rights (OCR) during the Obama years. Ali and Lhamon spent years evading the obvious question: why was it necessary, in April 2011, to reinterpret Title IX to allow the federal government to dictate campus sexual assault procedures? When Lhamon finally provided a written response to that question, in 2016, her purpose seemed to be more to mislead than explain. Indeed, the fact that DeVos even met with students who said they had been wrongly accused of sexual assault—something that Ali and Lhamon refused to do—was a path-breaking decision.

In the aftermath of the DeVos speech, four themes are worth considering.

Culture of Due Process

Before the speech, an astute observer of campus sexual assault predicted to me that the DeVos address would function as a Rorschach test, and he proved correct. The Education Secretary repeatedly, and forcefully, denounced sexual assault. She also discussed due process, including in some of these passages:

• “One person denied due process is one too many.”
• “Justice demands humility, wisdom, and prudence. It requires a serious pursuit of truth.”
• “No student should be forced to sue their way to due process.”
• “Any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination.”
• “Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.”

In virtually any other context of American life (with, perhaps, the exception of some national security debates), these comments would be seen as embodying fundamental American principles—which, of course, they did. Yet DeVos’ comments generated furious condemnation from Democratic politicians and liberal activists (David French summarizes, and critiques, some of the more strident of these claims.) The left-wing commentator Amy Siskind deemed DeVos’ speech a signal toward authoritarianism, before proclaiming, “STFU with your hackneyed due process talking point.” Stanford Law professor Michele Dauber described the speech as “one long dark dog whistle for men’s rights activists.” Rob Ranco, a Texas civil rights lawyer, said after the speech that he would “be OK if Betsy DeVos was sexually assaulted.”

These statements—again—came in response to a speech in which the Education Secretary repeatedly condemned sexual assault and repeatedly expressed her desire to see colleges handle sexual assault allegations under the banner of Title IX.

Yet, it’s clear, her belief that due process is important in the Title IX context is now seen in many quarters as excusing rape—that a system that allows accused parties basic rights and protections is one that will somehow always yield a not guilty finding. This is an enormous, and deeply troubling, cultural change. But it’s also, unfortunately, the logical outgrowth of the Obama administration’s approach to this issue. Six years of an implicit (and occasionally explicit) message that due process was an obstacle, rather than a necessary prerequisite, to campus justice has brought us to this point.

Democrats and the Accusers’ Rights Movement

Neither of our two major parties has a good record on civil liberties and due process matters, but over the past 50 years, the Democrats traditionally have been the more supportive party on these questions. On campus due process, however, the Democrats have become the accusers’ rights party, with no daylight between key party members and the accusers’ rights movement.

Former Vice President Joe Biden, for instance, spent the day after the DeVos speech appearing at an event hosted by Know Your IX, probably the most extreme of the major accusers’ rights organizations. Bernie Sanders, who in his 2016 presidential bid had (correctly) said law enforcement should handle campus violent crime, realized that he needed to reverse himself in the new party climate, and immediately condemned DeVos’ speech.

California Senator Kamala Harris, another prospective 2020 presidential candidate, came out against a presumption of innocence in campus sexual assault cases. In a tweet responding to a news report indicating DeVos’ skepticism about Obama-era guidelines, Harris thundered, “Survivors of sexual assault deserve to be believed, not blamed.” The statement recalled the notorious remarks of Dartmouth Title IX official Amanda Childress: “Why could we not expel a student based on an allegation?” That a U.S. senator and former state attorney general is now as extreme as an obscure campus administrator gives a sense of how dramatically the accusers’ rights perspective, once a fringe, has consumed the Democratic Party.

The two most significant Democratic statements, however, came from Washington Senator Patty Murray. The first—which deserves far more attention than it has received—came the day before the DeVos speech. In a press release, the Washington senator maintained, “The standard of proof guidance provided in the [Dear Colleague] letter has led to more women and men coming forward about their sexual violence experiences.” This was the clearest statement I’ve seen from a defender of the Obama-era policies that reporting will increase if colleges rig the procedures to increase the chances of a guilty finding. Much like Harris’ statement, this mindset presumes guilt.

The day after DeVos’ speech, Murray wrote the Education Secretary to demand that the Dear Colleague letter should be retained. Absent from her missive: any reference to “due process,” “fairness,” or “presumption of innocence.” In a world where every allegation was clearly true, the perspective of Murray and many of her fellow Democrats—in favor of a campus process designed to vindicate all accusers’ allegation might make sense. In the world in which we live, the party’s abandonment of civil liberties for college students is outrageous.

It’s also worth noting that while Democratic legislators might have abandoned due process, many prominent liberals and feminists have not. Harvard Law professors Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet, and Nancy Gertner have been tireless on this issue; Suk Gersen’s co-authored law review article (with Jacob Gersen) and her New Yorker columns on Title IX and due process are must-reads. Laura Kipnis’ book penetrated into the public consciousness in a way that no other work on this topic has done. Lara Bazelon has written several influential commentaries. Emily Yoffe’s research-based journalism at Slate and now the Atlantic provides a reminder that a left-of-center worldview doesn’t require accepting junk science or the infantilization of women. And, as I’ve noted previously, while I’ve been very critical of the Obama-era policies, I was nonetheless an Obama donor and voter in both 2008 and 2012.

The Rationales of Obama Officials

The clearest explanation for Obama’s policies from either of his two OCR heads came in this 2014 exchange between Catherine Lhamon and Tennessee Senator Lamar Alexander. Lhamon preposterously claimed that by confirming her, the Senate gave her the authority to “explain” Title IX—including, it seems, to the Senate itself, and by the threat of losing federal funds to all colleges and universities.

The response of high-level Obama Education Department officials to the DeVos address perhaps explains their previous public reticence. Lhamon seemed to express opposition to any executive branch office or agency using the regulatory process, as opposed to (her preference) issuing unilateral guidance. Ali wildly asserted that DeVos’ address would “take us back to a system that disempowers and silences survivors of sexual violence.” Weakening due process as the 2011 guidance did, Ali continued, amounted to “common sense protections,” and removing these provisions would create “an environment that is hostile to student survivors of sexual violence.”

The former boss of Ali and Lhamon, Education Secretary Arne Duncan, bizarrely suggested that DeVos’ speech meant that she was “choosing politics over students.” As Duncan surely knows, the politics of this issue move in one direction and one direction only—against due process for accused students. There was zero political benefit to DeVos’ remarks—she did the right thing morally and ethically, but took a political risk.

How Campus Tribunals Operate

A final point: I’ve noticed even in some columns supportive of DeVos’ efforts an acceptance of one vital element of the Obama narrative: that some action was necessary in 2011 because colleges were indifferent to the victims in their midst. At one level, this is true—doubtless, colleges were indifferent in the 1970s or 1980s when people challenged whether “date rape” could even occur. And there were some key cases involving athletes in the 2000s where colleges clearly looked to sweep things under the rug.

But, more generally, the claim that the typical college campus in the years immediately before the Obama guidance routinely mistreated sexual assault accusers is a hard argument to credit. We actually have a good case study of this: the Duke lacrosse case. Here was a claim that was as false as a rape claim possibly could be. Yet 88 Duke professors signed a public document affirming that something “happened” to accuser Crystal Mangum, and promising to continue their crusade “regardless of the results of the police investigation.” The Duke administration, behind the scenes, seemed equally willing to presume guilt. Could such a campus leadership—whose basic ideological culture on gender issues was comparable to that of most elite schools in the decade before the 2011 Dear Colleague letter—was celebrating the truth of Crystal Mangum but doubting the veracity of actual student victims?

Nor were pre-Obama Duke procedures somehow unfair to the accuser. Quite the reverse: after the lacrosse case, the university revised its sexual assault procedures to make it far more likely an accused student would be found guilty, while dramatically expanding the definition of what constituted sexual assault on the Duke campus. The new definition stated as a “guiding principle” a reminder that “real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” That is two years before the Obama administration acted, a Duke student could be found guilty of sexual assault if his accuser “perceived” him as more powerful, thereby creating “unintentional” coercion—even if he did absolutely nothing wrong.

Again, does this sound like an environment that was indifferent to campus victims?