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November 19, 2018

DeVos Rebalances Due Process in Title IX

The secretary of education restores students’ basic rights in sex-abuse cases.

Education Secretary Betsy DeVos is ending university kangaroo courts. Over the weekend, the Department of Education released its proposed regulations for reforming Barack Obama’s Title IX guidelines, specifically regarding the adjudication of campus sexual-assault claims. As Reason’s Robby Soave explains, “This guidance will replace an approach, established under the Obama administration, that threatened free expression on college campuses and due process rights for students accused of sexual misconduct. Unlike the Obama-era guidance, the DeVos policies operate in accordance with basic principles of fairness. They are a massive step forward. If colleges are going to be involved in the business of adjudicating sexual assault, this new approach is vastly preferable.”

The most important change is the mandate that basic due process protections must be applied. Included in this change are the right of the accused to cross-examine witnesses, the right of both parties to inspect and review any and all evidence obtained by investigators, and an end to the single individual investigator model (which amounted to one individual serving as the attorney, judge, jury, and executioner — hardly a fair system for arriving at true justice).

Another welcome change is the narrowing of the definition of sexual misconduct to that of sexual assault and harassment. Under Obama, the definition of sexual misconduct was dubiously broadened to include mundane speech that included gender or sex. Under the new changes, Title IX infringement occurs when conduct is deemed severe, pervasive, and objectively offensive. In other words, this works to restore the protection of freedom of speech and opinion from intrusive policing.

DeVos’s changes aren’t perfect. Why not remove the roll of sexual-misconduct adjudication entirely from schools and leave it to the courts where it belongs? Yet this is at least a big positive step in the right direction.

(Edited for clarity.)

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