On Thursday, September 7, the U.S. Secretary of Education, Betsy DeVos, gave a speech at George Mason University on the enforcement of Title IX, a federal law that prohibits schools that receive federal funding from discriminating among students or applicants on the basis of sex.
During the Clinton years, the Department of Education promulgated rules regarding sexual harassment and assault, taking the view that a school that did not have “prompt and equitable grievance procedures” in this area would be in violation of Title IX.
During the Obama administration, the DoE’s Office of Civil Rights issued more specific rules. It said for example that schools cannot delay their own procedures or investigation on the ground that the criminal authorities have action pending. When that is the case, the school’s own investigation should be treated as an independent matter. Relatedly, the OCR also said that the schools should not treat such charges as the grounds for a quasi-criminal proceeding of their own, according to the accused assaulter the benefit of a “reasonable doubt.” The school should, rather, use a more lenient “reasonable preponderance of the evidence” standard.
DeVos’ speech criticized the Obama era rules, saying that they have given rise to a system in which there is no pretense of due process, in which student accused of assault “may or may not” even be told of the allegations “before a decision is rendered,” “may or may not” be allowed a counsel, “may or may not” be allowed to examine the accuser at a hearing, and ”may or may not” be allowed an appeal should the decision go against him.
Right Wing View
A couple of very high visibility campus-based accusations of rape have given urgency to the cause of due process for the accused in such a context, supporting in particular the contention (generally associated with the political right in the U.S. context) that the “preponderance of the evidence” standard is not sufficiently demanding.
In March 2006, a woman then working as a stripper accused three men, each a member of the Duke University Lacrosse team, of rape. After more than a year of public accusations, investigations, and criminal prosecutions, the North Carolina Attorney General’s office announced in April 2007 that it had dismissed all charges against the Lacrosse players and, going further, that it believed the men innocent.
Perhaps even more important: in November 2014, Rolling Stone ran a cover story entitled “A Rape on Campus.” The reporter on the story, Sabrina Erderly, claimed that a woman at the University of Virginia she called “Jackie” had been raped, on that campus, by several members of the Phi Kappa Psi fraternity. The University suspended the fraternity as a consequence of the story. But Jackie or Erderly’s story unraveled over the following weeks as other news organizations turned their attention to it. In January 2015 the President of UVA acknowledged that the story was not credible. Rolling Stone has repeatedly apologized for it.
Both of these events have done a good deal to fuel the general sense that (in the words of Harvey A. Silverglate,) a campus ‘rape culture’ scare has become a witch hunt, which has “ruined innocent lives and corrupted justice,” and that “a return to sanity is called for.”
Left Wing View
There are some people who consider themselves left of center in U.S. politics who are concerned about due process for the campus accused, and some of them have even expressed some sympathy for DeVos’ take on Title IX enforcement. But they also make the following points: that the Trump administration has no credibility on this matter, as it is headed by a man who infamously boasted about his ability to “grab” female genitalia and in general has conducted himself as an enabler rather than a foe of sexual assault; that DeVos has likewise no credibility on this matter , as she is a daughter of privilege whose entire claim to her current high post is the size of the campaign contributions she has made to various Republicans, including certain of the Senators who voted to confirm her nomination; and that her subordinate, Candice Jackson of the DoE’s Officer of Civil Rights, has pre-judged such cases, claiming that most accusations of sexual assault on campus are cases in which both parties were drunk and/or in which the accuser “just decided that our last sleeping together was not quite right.”