With an eye toward restoring a measure of fairness to adjudicating campus sexual misconduct, Education Secretary Betsy DeVos announced new standards for such procedures on Friday.
Some in the media seemed determine to misrepresent these changes, and are uncritically parroting claims from victims’ advocacy groups who think any attempt to reform Title IX—the federal statute that forbids sex discrimination—is an attack on sexual assault survivors.
The worst example is an article from Abbey Crain, whose article at Alabama.com makes several significant errors.
“Education Secretary Betsy DeVos’ proposed changes for how schools handle Title IX cases would allow students accused of sexual assault to cross-examine their victim,” writes Crain.
This is simply untrue. The new rules specify that an accused student’s lawyer or support person must conduct the cross-examination.
“The rules would create a higher burden of proof for victims of sexual assault to prove a Title IX violation occurred,” Crain continues, “removing Obama-era regulations that required a ‘preponderance of the evidence.'”
This isn’t quite right either: Colleges may use a higher burden of proof than the preponderance of the evidence, but it’s not mandatory.
Crain then turns the article over to Madeline Anscombe, a victims’ rights activist who claims the changes would “limit ways students who are sexually assaulted could seek justice.”
But the new rules give students more options for seeking justice. The permit accusers who do not wish to undergo the full-court treatment to seek informal resolution, mediation, restorative justice, or any other option that satisfies both parties. “At any time prior to reaching a determination regarding responsibility the recipient may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication,” the new rules state.
Perhaps the Title IX activist community wants everyone accused of sexual misconduct to be subjected to life-ruining sanction, but I get the sense that some victims are not actually keen on such an outcome. They may want the accused to acknowledge wrongdoing, learn about consent, set things right, and pledge to behave better. Such a course of action won’t always fit the circumstances, of course, but the option is there.
Next, Crain consults…another foe of due process: University of Alabama Law School Professor Joyce Vance, who accuses DeVos of lacking “basic empathy for survivors” and making campuses less safe for women. This is blatant fearmongering that reduces a complicated problem to a black-or-white safety issue.
The article then briefly quotes a DeVos speech from 2017. Otherwise, there are no quotes from anyone who supports the new rules.
A piece in The Atlantic also leaves readers with a false impression of the DeVos rules. “Betsy DeVos’s Sexual-Assault Rules Would Let the Accused Cross-Examine Accusers,” the headline reads. Again, that’s not really true: Representatives for the accused will question the accusers, and vice versa. The article’s author, Adam Harris, doesn’t concede this until his third paragraph, spinning it as potentially a bad thing because it “could create a system where rich students who can afford a good attorney would have an unfair advantage in the hearings.” This is indeed a problem, although it’s also one that plagues the plain-old criminal justice system, in which those with less access to material wealth are assigned a public defender. In any case, doesn’t banning attorneys from meaningfully participating in the hearings at all—something previous Title IX guidance permitted colleges to do—run a greater risk of unfairness?
The Atlantic, it should be noted, has done some great work on the myriad problems with Title IX enforcement. The magazine ran Emily Yoffe’s terrific three-part series on the subject, and staff writer Conor Friedersdorf has penned an excellent defense of DeVos’ new rules. He also took the American Civil Liberties Union to task for coming out against the reforms—and, essentially, against due process. The ACLU’s betrayal here is especially concerning, given some of its recent stances. (See an ACLU spokesperson’s bizarre statement that “more should have been done” to the person who recently disrupted a performance of Fiddler on the Roof in Baltimore.) Wendy Kaminer, a lawyer and former ACLU board member, points out that ACLU has previously defended the rights of Nazis and Klansmen, making it all the more telling that the organization has suddenly lots its nerve.
Prominent Democrats have also condemned DeVos: Presumptive House Speaker Nancy Pelosi (D–Calif.) has accusedher and the Trump administration at large of perpetuating “the most anti-woman, anti-student and anti-equality agenda in recent memory.” No amount of hyperbole is too over-the-top for DeVos’s critics.
“Activists” aren’t about justice, or fairness.