“Believe the victim”. That’s the mantra of rape culture and #MeToo activists and the bane of men’s rights groups, as well as non-partisan defenders of due process. It shaped Obama Administration rules governing campus harassment and assault cases. So the Department of Education’s proposed revision of these rules elicited predictable howls of protest from progressives.
The ACLU, which once reliably defended the rights of Nazis, Klansmen, and other deplorables, has condemned the proposal for “promot(ing) an unfair process, inappropriately favoring the accused,” and making “schools less safe for survivors of sexual harassment and assault.”
Democrats agree: The Democratic National Committee characterizes this as an effort by the Administration to “shield the accused and turn its back on victims.” Former Vice President Joe Biden thunders that it would sweep “rape and assault under the rug” and shame “survivors into silence”.
Nancy Pelosi called out Secretary of Education Betsy DeVos’s “anti-women and anti-equality agenda.”
What does that agenda comprise? In essence the new Title IX proposal provides due process and free speech protections for students accused of harassment and assault. It adopts a precise definition of sexual harassment promulgated by the Supreme Court, as so “severe, pervasive, and objectively offensive” that it effectively denies equal educational access. The Obama Administration dictated (and many colleges and universities adopted) much broader, more subjective, standards of harassment as “unwelcome conduct of a sexual nature, including “verbal conduct.” The effect on free speech was obvious: harassment could include, for example, jokes that some unintended listener found offensive.
The DeVos proposal also makes clear that Title IX does not require private colleges and universities to punish or prohibit speech that would be constitutionally protected in public institutions. This means that administrators can’t claim that they’re legally obliged to restrict speech that some students consider offensive or discomfiting.
In assault cases, the proposal requires schools to “objectively evaluate all evidence,” inculpatory and exculpatory, to provide live hearings affording both parties equal opportunities to present and review evidence and to be accompanied by advisers of their choice. It allows but doesn’t require schools to use a higher standard of proof than the minimal preponderance of evidence standard. It prohibits evaluation of testimony based on the status of a witness, as either accuser or accused. In other words, the proposal rejects the practice of categorically believing accusers and presuming the guilt of the accused.
Perhaps the most reviled and misrepresented provision gives both parties rights of cross-examination, long considered fundamental in our system of justice. But contrary to the claims of critics, the proposal does not allow for direct questioning of accusers by the students they accuse. Cross examination would be conducted by student advisers, with limits on questions involving the accuser’s sexual history or alleged proclivities, and the parties would be sequestered in separate rooms during questioning, at their request, so that accusers are not directly confronted by their alleged assailants.
This neutral language used to describe the “parties” to sexual misconduct disputes is worth noting. Students leveling accusations are not automatically and prejudicially labeled “survivors”. Determining whether or not one student has, in fact, survived an assault while another has committed it is, after all, the purpose of a fair hearing.
Fairness has not been a characteristic of campus sexual assault cases under the Obama Administration rules, which promoted biases and procedures that favored accusers and led to hundreds of lawsuits by students found guilty after being afforded no reasonable opportunities to defend themselves. As the Foundation for Individual Rights in Education notes, since the Obama rules were promulgated in 2011, “approximately 117 federal courts, as well as a number of state courts, have raised concerns about the lack of meaningful procedural protections in campus adjudications.” Opinions criticizing the absence of fair procedures “were authored by respected judges nominated by Democratic and Republican presidents alike and confirmed by Republican and Democratic Senate majorities.”
But federal judges do not face elections every 2 or 6 years. House and Senate Democrats do, and they have adopted the language and leanings of their progressive base and the precepts of #MeToo. They’ll attack the rule revision histrionically, while newly empowered House Democrats grill Betsy DeVos. The ACLU’s opposition to injecting due process and speech rights into Title IX proceedings will protect them from any criticism leveled by a handful of unrepentant civil libertarians. The Kavanaugh debacle only intensified resistance to rules that complicate the process of finding accused students guilty. 2020 approaches, and the fever won’t break anytime soon.
Wendy Kaminer is a lawyer, author, and life-long feminist.