Senator Lamar Alexander (R-TN), who chairs the Senate Committee on Education, last week expressed support for Education Secretary Betsy DeVos’s effort to reform the way that Title IX is enforced.
Title IX of the Education Amendments of 1972 is the federal law that prohibits educational institutions from discriminating on the basis of sex. Although the law itself is relatively uncontroversial, Obama-era policies outlining the way schools must handle claims of sexual misconduct have been criticized harshly by civil libertarians who say they deprive the accused of due process.
In particular, they point to the now-infamous 2011 “Dear Colleague” Letter, which expanded the definition of sexual harassment and required universities to adopt a “preponderance of the evidence” standard, rather than the more exacting “clear and convincing evidence” standard traditionally used by universities in disciplinary matters.
In order to comply with the Obama administration mandates, many colleges and universities developed massive Title IX bureaucracies for rooting out and punishing sexual misconduct. Because the success of any such department is, of course, measured by the number of violations identified and punished, the rules and incentives developed by these departments inevitably (and wildly) skew against the accused in favor of conviction.
For example, most college policies lack basic statutes of limitations, allowing campus tribunals to probe allegations that are years or even decades old. Few colleges provide the accused with a clear, timely, and detailed notice of the allegations against them. Moreover, when the accused finally learn of the claims against them, they are often prohibited from discussing the charges with friends or colleagues. At the hearings to determine their fate, the accused are often prohibited from calling witnesses in their own defense, cross-examining their accusers, or bringing along an advocate to speak and submit documents on their behalf.
Speaking at a New York Times education conference in New York, Sen. Alexander praised Secretary DeVos for taking on this issue and for pushing for fairness for accusers and accused alike.
“There’s a lot of uncertainty around what sexual harassment means,” Alexander said.
“All that’s been done in intervening years have been letters and guidances that have no rule of law.”
In September, the DeVos’s Education Department formally withdrew the Dear Colleague Letter and urged schools to rethink some of their more draconian procedures. In addition, the Department encouraged schools to use the same standard of proof in sexual misconduct cases that they apply in any other disciplinary hearings.
Unfortunately, most schools have chosen to ignore the Department and have instead doubled down on their Title IX enforcement regimes. As Stuart Taylor and K.C. Johnson reported in RealClearPolitics in February:
[V]irtually all [colleges and universities] have refused to implement provisions of the DeVos OCR's interim guidance. (After scouring the country, a trio of accusers’ rights organizations was able to find only one school—the University of Houston—that was even considering changing its campus adjudication policies along the lines that DeVos had proposed.) And the pattern of injustice, which continues unabated, will almost certainly go on indefinitely unless and until the federal government takes much more forceful corrective action than anything DeVos has done so far.
Currently, the Department is working on just that: producing by 2019 new regulations for enforcing Title IX, which (unlike Dear Colleague letters and policy guidances) will have the force of law. DeVos says the new regulations will seek fairness for both complainants and accused students.
Of course, it is not just Republicans like Alexander and DeVos who have questioned whether colleges and universities have gone too far in their efforts to root out all forms of sexual misconduct.
In October article in the Atlantic Emily Yoffe writes that even California’s liberal Democratic Governor Jerry Brown has raised questions about the Obama-era enforcement regime. In vetoing a bill that would have codified the now-repealed guidance, Brown wrote that “thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault—well-intentioned as they are—have also unintentionally resulted in some colleges’ failure to uphold due process for accused students.”
Yoffe, who has written widely on Title IX, notes that, in her experience:
almost all the critics of the Obama administration’s policies
were Democrats and feminists. They have spoken out because of their own increasing worries in recent years that the legitimacy of the fight against sexual assault was being undermined by new rules on campus that had the effect of potentially turning any sexual encounter into a possible violation.
Hopefully, Democrats and Republicans can work together to create common-sense policies that will protect the rights of all students.