In defense of Betsy DeVos' Title IX plan

If you want to witness the creeping illiberalism of feminism, look no further than its reaction to Education Secretary Betsy DeVos' proposed overhaul of the Obama-era campus sexual harassment policies. Feminists are excoriating DeVos' proposed reforms as a huge step backward for women's rights. Glamour's Abby Gardner called them "alarming." National Women's Law Center's Elizabeth Tang declared that DeVos is "aiding and abetting" serial sexual predators like Larry Nassar and Jerry Sandusky.

Golly! What is DeVos suggesting that's so bad?

She basically wants to give universities space to restore some modicum of due process for those accused of sexual misconduct — be they men or women — something that progressives support in every other context.

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In 2011, the Obama administration sent colleges that receive federal funds a "Dear Colleague" letter offering them "guidance" on how they should adjudicate sexual harassment cases in order to avoid running afoul of federal Title IX rules meant to prevent sexual discrimination in education. This was a crafty move that allowed the administration to have it both ways: Since it was mere guidance and not a formal mandate, it couldn't be legally challenged in court. Yet universities that didn't want to lose their federal dollars would treat it as if it were.

What's more, this was a perversion of the true purpose of the Title IX statute, which wasn't to police sexual interactions between students but to ensure non-discriminatory campuses where both genders have full and equal educational opportunities. "If some behavior isn't depriving a student of educational benefits," notes George Mason University law professor David Bernstein, "then there is no reason to hold the school liable."

Worst of all, however, was the substance of the guidance. It lowered the evidentiary standard for conviction in sexual misbehavior cases from one requiring "clear and convincing" proof to one where a mere "preponderance of evidence" would do. (In the latter, the accused can be nailed if 51 percent of the available evidence goes against them in contrast to the former where 75 percent of it must be.) Also, the Obama administration wouldn't allow the accused to see — much less cross-examine and refute — the evidence against them, unless the accusers were afforded the same opportunity. (And forget about live hearings.) This is akin to convicting and deporting aliens suspected of terrorism by using secret evidence in Star Chambers, something that liberals have vehemently — and rightly — opposed.

The Obama administration also encouraged a "single investigator model" where universities appointed one staffer to gather and weigh the evidence and render a verdict without any impartial oversight. As if all this wasn't bad enough, the rules required universities to investigate all sexual misbehavior, big and small, even unwanted remarks or passes, not just actual assault or coercion. And universities were duty bound to follow up anytime any official got wind of something untoward, regardless of whether it occurred on campus or off or under circumstances that a university could control or not.

The upshot, predictably, has been a spate of wrongful convictions — especially of innocent minority men involved in inter-racial encounters when a woman developed qualms after the fact, as The Atlantic's Emily Yoffe has documented. In one incident that Yoffe describes, a bright, black, engineering kid at the University of Massachusetts was first suspended from the university and then permanently banned from living on campus after an encounter with a white female student that she initiated (and that did not involve actual intercourse) because she claimed that she was stoned and therefore not capable of consenting. He became so traumatized during the course of the proceedings that he lost weight and twice came down with pneumonia.

This might be a particularly egregious case but far from isolated. And this has been terrible not only for those wrongly convicted but universities themselves who've been forced by Title IX to throw these kids under the bus to keep their federal funds. Indeed, since the Obama rules went into effect, universities have faced dozens of lawsuits by unfairly targeted students and have likely paid millions in settlements. In recent months, even men have jumped in on the action and filed complaints against women who, they claim, seduced them against their will when they were too drunk to consent.

DeVos' rules would take a giant step forward to restore some sanity on campuses and return basic due process rights.

For starters, she'd get rid of the "single investigator model" and require universities to conduct proper hearings where the accused will be allowed to cross-examine the complainant — not directly (as some DeVos' opponents are falsely asserting) but through an advisor or an attorney. The complainant's sexual history will be off-limits. All of this strikes a pretty sensible balance between protecting the alleged victim from being re-traumatized by an insensitive process and the need of the accused to prove his/her innocence.

Also, under DeVos' proposed rules, universities will be held liable only when there is a "severe, pervasive, and objectively offensive" pattern of behavior or when actual assault or quid-pro-quo demands are involved, not every lewd humor or unwanted pass. This, incidentally, might help women too given that these days its not just men who enjoy sex talk. And she would require universities to act mainly when the offensive behavior occurs on campus, at college-run facilities or programs, and not, say, in a hotel in Miami over spring break. Furthermore, universities wouldn't have to jump into high-gear as soon as a student mentioned something to a resident adviser or a professor as previous rules required (which, ironically, discouraged rather than encouraged disclosure because the victims could not count on confidentiality). Instead, the student would have to file an official complaint and request a formal probe. However, in less egregious cases, if both parties agreed, they could opt for informal mediation and hammer out an agreement that preserved the interests of both — for example, the offender could agree to stay away from dorms and classes where the complainant might be.

But DeVos' truly inspired stroke is that instead of simply scrapping Obama's "preponderance of evidence" standard and replacing it with the "clear and convincing" one, she will give schools a choice to pick their own rules in sexual harassment cases. The only caveat is that they will have to apply them across the board — not use different standards for university employees and students, as some colleges currently do. If university officials have to live by the same rules, they will have to think more carefully about balancing the interests of all parties. More importantly, giving universities a choice will set up a natural experiment to sort out the policies that strike the optimal balance between protecting victims and extending due process rights depending on which ones result in more favorable court rulings and fewer settlement payoffs.

The National Center for Youth Law sued DeVos when she originally rescinded the Obama-era rules. However, now it's refusing to say whether it will file a legal challenge against her final rules. (An attorney for the organization responded to an e-mail query about its plans with a "no comment.") If it does, it'll be great. The rules are on solid legal grounds and if courts refuse to overturn them, it'll be harder for future administrations to do so too.

What's unfortunate is that feminists and their supporters have become so obsessively focused on their narrow agenda that they have lost sight of their broader principles. Yet protecting the reviled from becoming fodder for the cause du jour is what liberalism is supposed to do.

One day they'll thank DeVos from saving them from themselves.

Editor's note: This article has been clarified to better summarize the Obama administration's Title IX guidance.