Education Secretary Betsy DeVos has announced new proposed college regulations to protect the rights of students. The new rules are designed to ensure due process protections for students accused of sexual harassment and assault. If enacted, they will require schools to allow those who have been accused to have representatives question their accusers, a fundamental notion of due process the Obama administration worked hard to eliminate.
In September, DeVos announced the administration’s intention to scrap the existing federal regulations which were instituted by Obama and instate new ones consistent with honoring the rights of the accused. After announcing that good intentions alone were not enough, she said, “[s]urvivors, victims of a lack of due process and campus administrators have all told me that the current approach does a disservice to everyone involved.”
Requiring schools to allow cross-examination is perhaps the most important change the new rules will institute, but there are several other important changes as well. Also included is a raising of the standard of evidence that accusations are required to meet from a preponderance of the evidence standard to the stricter clear and convincing requirement. Another reversal of Obama administration policy would mean harassment is only what is legally defined as such by the courts, rather than a standard which amounted to “anything that might offend any woman.”
Ari Cohen, a lawyer for the FIRE (Foundation for Equal Rights in Education), said in 2015:
“Title IX is being turned into a Swiss army knife that can be used by colleges and universities to justify (and provide political cover for) virtually any academic or institutional policy even tangentially related to sex or gender.”
By weaponizing his Office for Civil Rights, President Obama “encouraged” schools to remove protections for accused students via a directive that threatened the very existence of the institutions themselves – revocation of federal funds if they did not obey. By increasing the behaviors included in what is defined as sexual harassment, combined with lowering the burden of proof against accused students, Obama used his pen and phone to unilaterally slash the rights of the accused on college campuses.
Defenders of liberty and due process decried Obama’s revocation of student rights, including feminist legal theorist Janet Halley who said:
“Just imagine if you were asked to go in to explain why you didn’t commit a sexual assault. With no information as to what you’re accused of, who’s accusing you, or when it allegedly happened, you’re required to start explaining yourself. And you’re 18 years old, and no one is helping you.”
The results have been predictable, with story after story of college administrators on thin or no evidence ruining the lives of the accused, who enjoy almost no rights on the campus. History professor K.C. Johnson, who has become a steadfast chronicler of these incidents and champion for the rights of the accused, describes one incident:
Amherst expelled a student for committing rape—despite text messages from the accuser, sent immediately after the alleged assault, (1) telling one student that she had initiated the sexual contact with the student she later accused (her roommate’s boyfriend); (2) inviting another student to her room for a sexual liaison minutes after she was allegedly raped.
Many victims of these university show trials have found succor in the courts, however, who, thankfully, understand that women too are capable of mistake or even deceit in furtherance of vengeance. Not good enough for Secretary DeVos who said: “No student should be forced to sue their way to due process.”
The American Civil Liberties Union (ACLU) blasted the changes in a move which signaled its complete abandonment of civil rights advocacy in favor of partisan politics. The organization decried the move on the grounds that it provides the accused with too much due process! In his death notice on the once proud defenders of liberty, law professor David E. Bernstein writes,“the ACLU is no longer a civil libertarian organization in any meaningful sense, but just another left-wing pressure group, albeit one with a civil libertarian history.”
As of now, the new rules are merely a proposal until the 60 day comment period concludes. After that, the administration may add them to the Code of Federal Regulations, or withdraw and revise them. Make no mistake, these changes will benefit college-goers, especially vulnerable and at-risk populations – those who identify as males at colleges and universities.