Ending the Title IX Terror

This was the moment the tide turned. No, more than that: This was the moment the Red Bull took his first step into the ocean, the moment the unicorns imprisoned there by the terror of him became visible in the crest of the wave.

At least, that’s how it felt for me when I read Betsy DeVos’ remarks.

Secretary DeVos. Photo courtesy U.S. Department of Education.

For this was the day the Secretary of Education repudiated the Obama Administration’s war on campus justice. This was the day the government agency that had forbidden colleges to give men due process when they’re accused of sexual misconduct announced that that policy would be replaced — and indicated that the new policy would not only give weight to the rights of the accused, but also address overly broad definitions of sexual harassment.

For years, Reason and others have been telling us about outrages inflicted upon accused students — even students whose “victims” didn’t think they’d done anything wrong — and the new policy should protect students from similar perversions of justice. But that’s not the only reason this reform is important.

The combination of unclear rules, harsh sanctions, and weak procedural protections can breed fear. When I aspired to an academic career, I felt that the nation’s campuses were becoming a hostile environment for straight men. A look at an attractive woman, or the wrong word, could be deemed sexual harassment — and even if I managed to avoid any such “misdeed,” I could be falsely accused. And thanks to the Obama Administration, if I were falsely accused, I would face a process weighted against me.

Meanwhile, women were saying that campus procedures weren’t enough to protect them from rape. And they were probably right. Just because these horrible things could happen or in some cases did happen, didn’t mean they reliably happened. But all it takes is a could and a sometimes to create fear; creating safety requires a system that’s reliable.

The Education Department’s new policy on campus sexual misconduct will be made through the deliberative process mandated by the Administrative Procedure Act. That means we don’t yet know what that policy will be.

But Secretary DeVos affirmed several key points:

  • Sexual-misconduct charges, and those who make them, must be taken seriously.
  • The rights of the accused must also be taken seriously.
  • Sexual misconduct must be clearly defined.
  • Speech that ought to be free must not be classified as harassment.

In so doing, she repudiated the April 2011 Dear Colleague letter in which the Obama Administration interpreted Title IX to require, among other things, that universities decide sexual-misconduct cases by a preponderance of the evidence. Under that letter, if all you had was the accuser’s word and that of the accused (perhaps because the incident took place in private), whoever was even slightly more credible had to win.

And the credibility of the accused is always undermined by the fact that he has a strong incentive to say he’s innocent whether he actually is or not.

Some universities went further than required in limiting due process. In one case, even the Obama Administration Education Department found that an accused student’s rights had been violated: Wesley College had expelled him without a meaningful chance to present a defense. And Secretary DeVos recounted a number of cases of campus procedures going unacceptably wrong.

Of course, that doesn’t mean that universities always take adequate care of alleged victims, either, as Secretary DeVos noted.

In her speech, Mrs. DeVos discussed a variety of ways campus sex cases could be addressed. But the regulations her department creates should specify as little as possible, leaving as much as possible to the institutions ED regulates. Different universities face different challenges and have different values. The more flexibility they have to set policy on this issue, the better they can apply those values to those challenges.

Moreover, no deliberative process that could take place before regulations are put in place will be as informative as letting institutions impose different rules and seeing how those rules work out in practice — and how they affect students’ choices of which schools to attend. Of course, to some extent, universities imposed different rules even under the Obama Administration. But the wider the range of choices open to institutions is, the more diverse their choices will be, and the wider the range of options open to students will be.

The risks of taking away options are numerous. For example, some people think universities shouldn’t judge rape cases at all, but leave them to the criminal-justice system. It may well be that this would provide inadequate protection to victims in some places. And when I was on the University of Virginia Honor Committee, which primarily handles academic-integrity violations, there was widespread concern that the high level of due process we provided discouraged professors from reporting cheating; if the Education Department mandates too much process, it could discourage rape victims from coming forward. If institutions have their freedom, we’ll see many different attempts at reconciling the need to protect victims with the rights of the accused, and institutions that do a bad job will be able to learn from those that do better.

In principle, the federal government shouldn’t be regulating this at all. But there is a statute, Title IX, forbidding sex discrimination in educational programs that receive federal funds. The department must apply Title IX. And the secretary was right: “Any school that refuses to take seriously a student who reports sexual misconduct is one that discriminates. And any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination.”

Besides, the Education Department has been a driving force for injustice, and it ought to repair the damage it has done. Some schools used to have higher standards of proof in sexual-misconduct cases and lowered them because of the Obama Administration mandate.

So the challenge for the department now is a complex one: It must uphold the principles Secretary DeVos noted. It must see to it that rape complaints are taken seriously, and that those accused of sexual misconduct get due process. And it should try to do this while letting universities craft the policies that suit their students.