Latest Duke lacrosse revelation shows need for Title IX reform

Three White men on the lacrosse team at an elite Southern university. A Black woman poor enough to have to strip her way through a regional college. They’d raped her at their party, called her racial slurs, threatened her and beaten her, she told police.

Except none of that happened.

Crystal Mangum, the woman who accused three Duke lacrosse players of raping her in March 2006, confessed on Dec. 12 — 18 years later — that she’d made the story up in an interview on “Let’s Talk With Kat,” a podcast hosted at the North Carolina Correctional Institution for Women, where Ms. Mangum is incarcerated for murdering her boyfriend.

Fortunately, just over a year after the case began, the men she falsely accused were officially deemed innocent — but not before they were presumed guilty of rape and racism in the media frenzy surrounding the case by their peers and even by 88 Duke professors who took out an ad in the Chronicle of Higher Education thanking student demonstrators “for not waiting and for making yourselves heard.”

When incontrovertible evidence came out in the men’s favor, then-North Carolina Attorney General Roy Cooper dropped all charges in April 2007, calling the case “the result of a tragic rush to accuse and a failure to verify serious allegations.”

The case should have reminded us that the fairness values in our Constitution — the presumption of innocence and due process — are not theoretical constructs but needed structures to prevent innocent people from rotting in prison. But colleges and leftist administrators failed to learn. If anything, campus sexual assault proceedings have drifted further from our nation’s fairness mandate.

While the Duke lacrosse case played out in the official system, most campus sexual assault cases today are dealt with through Title IX. This landmark 1972 law protects against sex discrimination in educational institutions, which has been interpreted to require colleges to become police forces investigating and prosecuting sexual assault.

In 2011, the Obama Department of Education issued a top-down “Dear Colleague letter” (to bypass formal rulemaking) that forced colleges to conduct hearings regarding sexual assault allegations on campus. From this point on, a single investigator using the “preponderance of evidence” standard, rather than a “reasonable doubt” standard, would adjudicate on-campus sexual assault allegations.

In other words, a campus investigator did not need to believe that an incident occurred, only that it had more than a 50% likelihood of occurring. If a college did not follow such a standard, the Education Department’s Office of Civil Rights could cut its federal funding. In an evenly believable “he said, she said,” that is, what she said is enough to punish the accused if it’s only more likely that not.

Colleges fell in line, and on too many occasions threw students and faculty who had been accused under the bus. A study from 2020 found that over 500 accused students filed lawsuits against their colleges for bungling Title IX proceedings between 2011 and 2020; at the time of the study, colleges had lost over 90 of those lawsuits and had settled on over 70.

In the first Trump administration, then-Secretary of Education Betsy DeVos rescinded the Obama-era Dear Colleague letter and, unlike Obama-era bureaucrats, went through the formal rulemaking process to create a Title IX rule that established rights to due process and cross-examination for both accusers and the accused.

Unfortunately, the DeVos rule, which took effect in 2020, was thrown out by the Biden administration, which established its Title IX rule this year. Whereas the Obama administration had paid no mind to the rights of the accused, the Biden administration has gone out of its way to gut them.

The most absurd part of the Biden administration’s logic is that it reimplemented campus kangaroo courts in the name of “victims’ rights.” Not only is it insulting of the administration to insinuate that victims’ rights are at odds with fairness, what victims themselves are seeking is fairness. The administration actively undermines victims when it creates a system that is not impartial and is instead heavily tilted toward anyone who makes an allegation. No justice-seeking victim wants to be lumped in with false accusers like Crystal Mangum.

Thankfully, the Biden administration’s hubris somewhat curtailed much (although not all) of the damage its Title IX rule could have caused: In the same Title IX rewrite, the administration overstepped on matters of gender identity, which have rightly attracted a great deal of public scrutiny. As a result, the Biden rule has been held up by legal challenges to the point where it has taken effect in fewer than half the states. That means that the DeVos rule still holds in most states.

But a saner Title IX rule should be in place nationwide for all students and faculty in institutions that receive federal funding — either a rule that requires due process or, ideally, a rule that gets colleges out of the business of being police forces and leaving on-campus sexual assault allegations to be dealt with through the official system just as off-campus sexual assault allegations are.

Linda McMahon, President-elect Donald Trump’s pick for secretary of education, will soon have the opportunity, as Ms. DeVos did before her, to establish such a rule and to bolster the education system’s credibility rather than kill it.