Michael Swartz / Sep. 8, 2017

A Shift in Campus Rape Priorities?

Education Secretary Betsy DeVos takes on Obama's attack on justice and the Rule of Law.

As students around the country settle in for another academic year, many also tread an interpersonal minefield of campus mixers where incoming and returning students get to know one another, with some taking the “knowing” to a biblical sense. After the buzz subsides and the hangover recedes, some of these participants will have second thoughts about their actions. Most of the time, the experience will be chalked up as a life lesson learned, and sometimes these relationships get back on track. In an increasing number of cases, however, these furtive trysts lead to disciplinary action by the school against the male participant, who is almost always deemed to be the assailant whether the charge is accurate or not.

We’ve told you in the past how this state of play arose from an Obama administration official’s 2011 missive known as the “Dear Colleague” letter, and that the Trump administration, led by Secretary of Education Betsy DeVos, was determined to bring the Rule of Law back to campuses. That determination was addressed in remarks DeVos gave yesterday to students and faculty at George Mason University, a speech where she noted that not only was one act of harassment or sexual assault on campus one too many, so was “one person denied due process one person too many.” She also accused the Obama administration of “weaponizing” the department’s Office of Civil Rights, describing it as part of a system “run amok.”

Better balance between the rights of accuser and accused would seem to be something everyone could get behind, but because this was Betsy DeVos speaking, and because she’s a favored appointee of President Trump, we could expect a knee-jerk defense of the current system despite its many serious flaws, as well as an ill-tempered assault on the agents of change. “The clearest and most consistent signal from this administration has been that it is uninterested in civil rights at best, and opposed to civil rights at worst,” lamented former Department of Education official Catherine Lhamon, who headed up the Office of Civil Rights under Obama. The remarks were “a blunt attack on survivors of sexual assault,” added National Women’s Law Center president and CEO Fatima Goss Graves.

In addition, about two dozen protesters from assault survivors’ advocacy groups picketed DeVos’s speech, claiming “we don’t need any rollback” of the existing rules, which set the legal standard of guilt to just a preponderance of the evidence and limited the legal protections of the accused.

But while the federal government may take a different approach, with DeVos stressing that these rules will come only after an opportunity for public comment — unlike the “Dear Colleague” letter — some administrators are saying they’ll continue under the present system. Meanwhile, as Emily Yoffe writes in the first part of a long treatise on the subject at The Atlantic, “Prescient activists, fearing that federal guidance might be overturned, have already begun lobbying state legislatures to enshrine as law much of the Obama administration’s Title IX sexual-assault guidance — California and Massachusetts are considering such bills.”

Furthermore, because the previous administration showed how serious it was about enforcing the Title IX laws by the implied threat of withholding federal money for non-compliance, most schools have added a Title IX compliance office and personnel to deal strictly with these issues. Those excess administrators aren’t going to go away quietly just because the system of determining guilt in these cases may be restored to one where “clear and convincing” evidence is required for punishment, regardless of what disparate groups such as the American Association of University Professors and American College of Trial Lawyers may want. (Both are on record supporting a return to that standard.)

As secretary of education, DeVos is in a position to make some much-needed changes, particularly in areas of dubious legality such as this one — dubious at least as measured by the hundreds of lawsuits filed by wrongly expelled or accused students over the years, such as this one. But unless the federal government puts the same teeth into the new rules as did the Obama regime, with the loss of federal funding at stake, it’s likely things won’t change anytime soon — and likely that freshman mixers will remain fraught with legal peril.

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