Last Thursday, Education Secretary Betsy DeVos made a speech announcing the reversal of Obama-era policies on campus sexual assault under Title IX, the federal law on gender equity in education. This was met with a wave of outrage on social media and in progressive publications. There were angry accusations that the move would harm women and protect rapists; a #StopBetsy hashtag sprang up on Twitter.
Why the fury? DeVos offered a full-throated defense of due process, asserting that “every survivor of sexual misconduct must be taken seriously” but “every student accused of sexual misconduct must know that guilt is not predetermined.”
It is the right message, whatever one thinks of the messenger.
DeVos had harsh words for Barack Obama’s administration, charging that it “weaponized the [Department of Education] Office for Civil Rights to work against schools and against students.” That was a reference to the administration’s 2011 “Dear Colleague” letter to college presidents, which issued directives on Title IX enforcement — later backed by a threat to withhold federal funds from schools found noncompliant.
Notably, those guidelines mandated a “preponderance of the evidence” standard in sexual misconduct complaints; previously, most elite universities and many other schools had used the higher standard of “clear and convincing evidence.” Under the preponderance rule, those adjudicating the case must find against the defendant if the probability of guilt is even slightly more than 50-50. In practice, it’s a de facto coin toss — with federal pressure to be tough on sexual assault adding strong incentives to err on the side of the accuser.
The fallout can be seen in the Kafkaesque horror stories DeVos recounted — but also in dozens of lawsuits by students expelled on dubious charges. The courts have been increasingly sympathetic to these plaintiffs, some who say they were victims of anti-male gender bias. This seems plausible when one considers cases in which young men are selectively punished for drunk sex even though both parties are equally intoxicated and equally active in the encounter.
In one such case, at Occidental College in 2013, students “John Doe” and “Jane Doe” had sex after an alcohol-soaked party in his dorm room. After Jane Doe complained to Occidental, an internal review panel found that Jane Doe was too drunk to consent and that John Doe had sexually assaulted her. The college expelled him.
According to a court filing by John Doe’s lawyer, after leaving with friends, Jane texted John about coming back, asked if he had a condom, and walked downstairs to his room, texting a friend that she was about to have sex. A few days later, according to the brief from John Doe’s lawyer, Jane Doe sought counseling and was advised to talk to two professors involved in anti-sexual assault activism; they encouraged her to file a complaint. John Doe’s lawsuit against Occidental is still pending.
In a 2014 case at Amherst College, another “John Doe,” whose lawsuit was recently settled out of court, was branded a perpetrator when he was arguably the victim: The school accepted his claim that he had no memory of the incident due to intoxication, while the female student’s text messages appeared to confirm she initiated the sexual contact.
DeVos’ attention to the wrongly accused rankles advocates who say such cases are incredibly rare. One commonly cited figure, from a 2010 study, is that 2% to 8% of campus rape reports are false. Yet even that small number warrants taking innocence seriously. What’s more, it includes only reports proven to be knowingly false; more than half of all complaints in the same study were closed, due to inconclusive evidence or allegations that did not meet the definition of sexual assault. Ultimately, no one knows how many people are wrongfully accused. But this should not be a victimhood contest or a numbers game.
Justice for all is not a matter of statistics. As DeVos put it: “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.”
DeVos is also correct when she faults “broad and ambiguous definitions of assault,” such as failure to obtain sufficiently clear consent to a specific act during a mutually desired encounter, or waking up your partner with a kiss (an offense that, in part, got a gay man expelled from Brandeis University). And she is correct that neither the accused nor victims are well-served by a university justice system in which people with no forensic or legal training play cop, prosecutor and judge.
With all the baggage the Donald Trump presidency carries on both women’s issues and civil rights, DeVos’ rebuke of current campus rape policies is easy to portray as an assault on women’s gains. Yet it echoes critiques by feminists, including Harvard law professors Janet Halley and Jeannie Suk, and veteran journalist Emily Yoffe, whose three-part series on the subject was launched on the website of The Atlantic the day of DeVos’ speech.
Some rape survivors agree, too. Meaghan Ybos, a Memphis, Tennessee, woman who was attacked by a serial rapist as a teenager in 2003 and started an organization called People for the Enforcement of Rape Laws after the police botched her case, told me in a Twitter direct message conversation that DeVos’ speech left her “cautiously hopeful.”
Expanding the definition of sexual misconduct, “as the Obama OCR has done,” doesn’t help victims, wrote Ybos (who is, for the record, no Trump supporter). “It trivializes sexual violence.” Ybos knows there are problems with the way the police handle rape complaints, but hopes that “under DeVos, the Department of Education will stop using those problems as fodder to justify campus rape tribunals.”
As for practical change, for now DeVos is seeking public feedback on how to improve the system. One model she has mentioned — referring Title IX sexual assault complaints to “regional centers” that would coordinate their work with law enforcement — is a promising idea. (DeVos credited it to former prosecutors Gina Smith and Leslie Gomez; a similar proposal has been made by George Washington University law professor and civil rights advocate John Banzhaf.)
Will DeVos’ reform project succeed? Given the odium in which this administration is held in academia, as well as its general unpopularity and incompetence, the odds are not good: Even if DeVos formally rescinds the Obama administration guidance, college administrators will likely be under pressure from feminist and social justice groups to stick with their post-2011 rules, and the consensus to develop alternative structures such as the regional centers may never emerge.
Still, DeVos deserves praise. While she has been deservedly criticized in the past for poor knowledge of educational issues, the speech announcing her intention to rescind the Obama guidelines was reasonable, compassionate, and important in asserting the “non-negotiable principles” of fairness.
The backlash shows a disturbing mindset equating accusation with guilt. How ironic that some of the same people who accuse the Trump administration of wanting to gut civil rights also excoriate DeVos for wanting more respect for due process.