In an anticipated speech yesterday, delivered at George Mason University’s Antonin Scalia School of Law, Secretary of Education Betsy DeVos announced that the U.S. Department of Education is moving to end the reckless Title IX enforcement regime adopted by the Obama administration. The speech reflected a welcome regard for statute after years of executive-branch adventurism and, more important, a much-needed push to begin correcting for the kangaroo-court insanity that Obama-administration ideologues unleashed on college campuses.
DeVos appropriately framed her remarks by hailing twin imperatives: the need to protect all students on college campuses from sexual harassment or assault, and the need to ensure that those accused of such acts are treated fairly. Especially for someone who has had her share of stumbles in public remarks, DeVos delivered a well-crafted speech with aplomb. The balance and tenor of her remarks was just right.
But DeVos also proceeded to do something that her Obama-era counterparts never did, which is to carefully affirm that we do not protect or support victims by railroading the accused through sham processes. As DeVos put it, “One person denied due process is too many. . . . Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined. . . . Due process either protects everyone, or it protects no one. The notion that a school must diminish due-process rights to better serve the ‘victim’ only creates more victims.”
DeVos addressed the worrisome way in which Title IX enforcement has grown into a tool for policing speech. She highlighted the need to be “more precise in the definition of sexual misconduct” and observed:
Schools have been compelled by Washington to enforce ambiguous and incredibly broad definitions of assault and harassment. Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes. . . . But if everything is harassment, then nothing is. Punishing speech protected by the First Amendment trivializes actual harassment.
Bizarrely, DeVos’s sensible stance represents a sea change from current policy. In April 2011, responding to hyperbolic claims of a “campus rape epidemic” fueled by junk science, the Obama Department of Education issued a “Dear Colleague” letter that dramatically altered Title IX enforcement on college campuses. The letter greatly expanded federal reach into how colleges should adjudicate sexual-harassment investigations if they wanted to steer clear of a potential federal investigation.
The 2011 guidance, issued without the required notice-and-comment rulemaking process, informed schools receiving federal funds that they should use the “preponderance of evidence” standard — the lowest possible standard of proof in our judiciary system — in all investigations of sexual offenses, ranging from unwelcome sexually charged speech to rape. The preponderance of evidence standard means that if the campus administrator thinks there is a 50.1 percent chance that accusation is true, the accused is to be found guilty. The letter also imposed a form of double jeopardy by requiring that schools allow accusers to appeal not-guilty rulings. It further “strongly discouraged” institutions from allowing accusers to be cross-examined. Campuses that failed to abide by any of these “suggestions” would be vulnerable to federal civil-rights investigations.
Subsequent Obama-era Title IX guidance imposed further federal strictures on higher-education institutions, including telling them to adopt a remarkably expansive (and unconstitutional) definition of sexual harassment. A self-proclaimed “blueprint” for Title IX compliance issued in 2013, for example, reaffirmed OCR’s expectation that schools treat any unwelcome conduct of a sexual nature, including speech, as sexual harassment, despite the Supreme Court holding otherwise. It also made clear that conduct which a “reasonable person” would not consider “objectively offensive” could still be deemed to constitute harassment.
The consequences of all this were as unfortunate as they were predictable. K. C. Johnson, co-author of The Campus Rape Frenzy, has noted that a district-court decision against Appalachian State University last month marked the 60th time that courts have ruled against colleges and universities in campus due-process cases since the 2011 “Dear Colleague” letter. This September, the Foundation for Individual Rights in Education (FIRE) released a study of campus due process in which it reported that of 53 of the nation’s leading colleges and universities, 85 percent maintain policies that grossly violate due-process protections and nearly three-quarters don’t even presume the accused innocent until proven guilty. In one striking instance, Northwestern University professor Laura Kipnis found herself subject to two Title IX investigations in 2015 following an essay she had written for The Chronicle of Higher Education about campus sexual politics and paranoia. Other instances of accused students and faculty being railroaded by university kangaroo courts can be found in nearly any major news outlet.
DeVos’s speech marks a promising turn.
DeVos’s speech marks a promising turn. While the education press reported that DeVos was, for now, leaving the 2011 Obama guidance intact, a senior Department of Education official told us that this is misleading. Rather, the official says the department has already filed paperwork with the Office of Management and Budget to rescind the guidance and adopt new interim guidance in its place.
The interim guidance will stipulate fair-treatment standards for both parties involved in these investigations. This means no more star chambers: All the evidence available to one party is to be available to the other, and institutions will be required to notify the accused of any charges levied against them. The interim guidance will also take Washington’s thumb off the scale in terms of evidentiary standards, cross-examination, and the like, allowing campuses to reinstate due-process protections without fearing they will trigger a federal civil-rights investigation. DeVos also announced that she will launch a “transparent notice-and-comment process,” in accord with federal law, to develop guidelines that can more responsibly and effectively promote safe campuses, provide justice to victims, and safeguard the rights of the accused.
Secretary DeVos’s fine speech and pledge to act are worth commending — especially given the caterwauling and vitriol with which she knew she’d be greeted by the Title IX lobby, campus ideologues, and old Obama hands. If she’s able and willing to follow through, DeVos’s articulate and measured challenge to campus kangaroo courts will prove to be a heartening win for common sense.
— Frederick M. Hess is director of education-policy studies at the American Enterprise Institute. Grant Addison is a research assistant at AEI.