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This week, Education Secretary Betsy DeVos formally announced new Title IX rules governing sexual-misconduct cases in schools.
It’s difficult to understand why instances of alleged criminal sexual misconduct shouldn’t be forwarded and adjudicated by the proper authorities, where both victim and accused are subjected, like all of us, a system that determines truth, guilt, and punishment.
It’s also difficult to understand why schools, which aren’t properly equipped to conduct criminal investigations, much less fair trials, should be held responsible for the actions of all their students, even when they are off campus.
This, however, is the reality of Title IX. At the very least, then, the state should ensure that students are afforded the same impartiality, norms, and protections that every one of us expects in the real world. Yet, with a 2011 “Dear Colleague” letter, the Obama administration compelled schools to conduct sexual-misconduct inquiries as if they were show trials — stripping students of the ability to face their accuser, or to call witnesses, or to see the evidence against them.
DeVos is now returning some sanity to the handling such cases. For this, Catherine E. Lhamon, chairwoman of the United States Commission on Civil Rights, accused her of “taking us back to the bad old days, when it was permissible to rape and sexually harass students with impunity.”
This is appalling hyperbole. And it’s all the more reprehensible because it comes from the chairwoman of an agency created and charged with ensuring that the constitutional rights of all Americans be protected equally.
As my colleague Charles Cooke points out, it’s unclear why Lhamon believes this specific crime, and not others, should be exempted from age-old expectations of due process. “After all, we can’t have people murdering or carjacking or stealing with impunity, so why not abolish the Fifth Amendment?” If the only thing achieved by protections for the accused is incentivizing more criminality, why have any protections at all?
It would certainly be helpful if Democrats who are denouncing DeVos’s campus-sexual-assault policies would explain which rules they object to, and why.
Are they opposed to schools allowing hearings in which lawyers and advocates from both sides can ask questions? Are they opposed to the accused having access to evidence related to the charges filed against them (sans medical records)?
The Obama guidelines allowed accusers to appeal “not guilty” verdicts but did not guarantee the same right for the accused. Rather, it permitted penalties to be handed out before investigations were even conducted. And those who conducted the investigation, often a single untrained employee, were empowered to be both judge and jury. Adjudicators will now be trained, and the training material they use will be published on the school’s website to offer transparency.
The new rules, and there are 2,033 pages of them, also expand the protections for victims by asking schools to investigate allegations of stalking, domestic violence, and dating violence.
The rules also roll back broadsides against free speech instituted by the Obama administration, which forced schools to investigate sexual-themed speech that offended students. As with most things on campus these days, the process was hijacked by brittle and perpetually offended progressive students.
DeVos does not institute a “clear and convincing” evidentiary standard over the less rigorous “preponderance of evidence” standard; instead, she lets schools choose to live by either standard, so long as they apply it equally.
Now, we shouldn’t be under the impression that Americans will be given a fair reading of the new rules, either. The Washington Post, for example, claims that DeVos’ guidelines, “will give universities and colleges a clear but controversial road map for handling emotionally charged conflicts that often pit one student against another.”
Have you noticed that conservative positions — and not very long ago due process was the bailiwick of liberal groups such as the ACLU, as well — are almost always “controversial?” Guess what? Everything in politics is “controversial,” or we wouldn’t be talking about it. And yes, sexual-assault accusations tend to be emotional events that pit one student against another. The insinuation of this kind of editorializing (shoved into a story that’s presented as news) is that “emotional” conflicts deserve a special set of rules. Some of us would argue that emotional conflicts especially benefit from a dispassionate process.
Here is the framing offered by NBC News:
Now, under reworked federal rules, alleged student perpetrators will have added protections, including the presumption that they are innocent throughout the disciplinary process and the right to be provided all evidence collected against them.
There is no legitimate concept of justice in which the presumption of innocence is an “added protection.” It is the foundational protection. The Obama administration deprived students of it, and the Trump administration reinstated it. That’s the story.