On Tuesday night, two Democrat senators pressured President-elect Donald Trump’s nominee for secretary of Education, Betsy DeVos, to embrace a debunked college campus “rape culture” narrative on sexual assault. Specifically, they asked her to commit to enforcing Title IX regulations which have deprived hundreds of students of their due process rights under the Constitution.
The issue of campus sexual assault is more complicated than Democrats like to admit. While such assault is a heinous crime and should be dealt with seriously, every case should be examined on its own merits, without preconceived judgements on either side. Much of the rhetoric involving such cases is one-sided, and it pressures colleges to find the accused guilty, even in the face of exonerating evidence.
The Obama administration has enshrined in law a false narrative that destroys lives, and Democrats defend it in the name of prosecuting sexual assault. Here is U.S. Senator Patty Murray (D, Washington state), questioning DeVos:
Murray: President-elect Trump was recored bragging about kissing and groping and trying to have sex with women without their consent. … If this behavior, kissing and touching women and girls without their consent, happened in a school, would you consider it sexual assault?
Murray: One in five young women will experience sexual assault while in college. … Can you promise them and me that you will not, as has been in the press, consider “reining in the Office for Civil Rights” in the Department’s work to protect students from campus sexual assault?
There are multiple problems with Murray’s remarks and question.
First, by comparing alleged campus perpetrators of sexual assault to Donald Trump, Murray set up a false analogy. Trump may indeed be guilty of sexual assault — he has, after all, bragged about it — but that does not mean that every college student who is accused should be assumed guilty. In case after case, evidence exonerating the accused has been found, but colleges disregard it. Why?
Second, as K.C. Johnson and Stuart Taylor, Jr. explain in their forthcoming book The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, the “one in five” statistic is extremely misleading. The Department of Education indicated that approximately 10 million women are enrolled (full- or part-time) as undergraduates. The one-in-five figure would mean that 2 million of them would be sexually assaulted while at college, which means between 400,000 and 500,000 sexual assaults per year.
The 1990 Clery Act requires all colleges to report the total number of student sexual assaults. Between the years 2012 and 2014, universities reported an annual average of between 4,558 and 5,335 sexual assaults. While sexual assaults are likely to be underreported, that is a ratio of almost 100 to 1.
So why the huge numbers? Many surveys about sexual assault do not actually ask respondents whether they were raped or sexually assaulted. Instead, they ask broad questions about sexual activity, and then interpret certain types of activity as sexual assault. Furthermore, they often have extremely low response rates, which makes them even less reliable — since women who claim to have been assaulted are more likely to respond.
The third huge problem with Murray’s question (and with one posed by Pennsylvania Senator Bob Casey) is that the Office of Civil Rights (OCR) established by Title IX has overstepped its bounds in recent years. When Title IX was established, it was never intended to regulate sexual behavior among students, but only abuses by college faculty or staff.
This changed in 1997, when the OCR published a guidance linking Title IX to student-on-student sexual assault. The Supreme Court itself strictly limited this interpretation in a 1999 case, but a series of high-profile sexual assault cases toward the end of the George W. Bush administration sparked an outcry, and the Obama administration responded with a 2011 “Dear Colleague” letter which commanded the more than 7,000 federally funded universities to adjudicate sexual assault claims themselves, rather than handing them over to the police.
To make matters worse, many college administrators have been indoctrinated to believe that every alleged victim of sexual assault is telling the truth, despite evidence to the contrary. This belief comes from misleading figures from a retired University of Massachusetts psychologist, David Lisak. Lisak’s 2002 study, which did not involve a single case of campus sexual assault, has been used to support the idea that 90 percent of such assault is perpetrated by serial predators.
He also argued that false rape claims only constitute between 10 (or 8 or 5) percent and 2 percent of cases. Lisak’s 2010 study, used to back up these outrageous statistics, actually debunks them. That study found that only 35.3 percent of 136 allegations were credible enough to be adjudicated. The other 64.7 percent of cases either had no evidence, conflicting evidence, or insufficient information to classify them.
Nevertheless, campus investigators are taught that the vast majority of allegations of sexual assault are true, and that the serial predators must be found guilty, even in the absence of evidence.
A May 2016 open letter signed by more than 20 law professors denounced OCR’s actions, declaring, “Through a series of directives and compliance enforcement actions, ORC has brazenly nullified the Supreme Court definition of campus sexual harassment … exerting a direct and deleterious effect on campus free speech and due process.”
The book by Johnson and Taylor documents at least 25 cases where a man was accused of sexual assault, the police refused to prosecute, but the campus kangaroo courts found him guilty. Worse, in case after case there was evidence proving him innocent, but the school would not consider it.
In one case, a refugee from Syria sued Pennsylvania State University because the college — without even giving the accused the right to confront his accuser — summarily judged him guilty and sought to suspend him, which would have involved invalidating his student visa and sending him back to war-torn Syria. Luckily, a judge issued a restraining order, preventing the student’s deportation.
One case at the University of Cincinnati involved two women accusing a man of sexually assaulting them, on the grounds that they were too drunk to have consented to the three-way encounter they had. Police uncovered discrepancies in their case and declined to pursue charges, but the university’s disciplinary panel not only took the case, but refused to consider text messages from the accusers’ phones or a surveillance video which would have shown how intoxicated they were. The accused student was expelled.
When a student is falsely accused and expelled, he is branded a rapist for his entire life. This has resulted in post-traumatic stress disorder, suicide attempts, and the dashing of hopes and dreams.
Finally, the emphasis on campus sexual assault obscures the vital fact that most abuses do not occur on college campuses. Also, by insisting that campus tribunals deal with the problem, rather than police, the movement is arguably pushing to make things worse, not better. If the campus were to convict a rapist on a college campus, the worst punishment they can give is expulsion, which would set the perpetrator loose on the streets. Ironically, the best-case scenario for the college kangaroo courts is the exact same as the worst-case scenario for the justice system.
Nevertheless, colleges often receive negative press for not being harsh enough to the accused, as liberal media outlets denounce them as being lax on sexual assault. This narrative, supported by the Democratic senators who questioned DeVos, shows no signs of abating, despite its debunked claims and horrific results.
When Senator Murray and Senator Casey asked DeVos if she would defend the OCR rules responsible for creating this horrible abuse of power, she demurred. When Casey pressed if she would commit to uphold OCR’s 2011 guidance, she responded, “It would be premature for me to do that today.”
She did, however, promise to work against sexual assault in a way that “recognizes both … the rights of the victims as well as those who are accused.”
Indeed, DeVos and her family have donated to the Foundation for Individual Rights in Education (FIRE), a wide-ranging campus rights group which also defends the due process rights of those accused of sexual assault. Politico reported that DeVos and her husband gave $10,000 to the group, and Sen. Casey alleged that she gave them $25,000 over four years.
Few of Trump’s appointees have received the kind of scorn reserved for DeVos, who has been denounced as a religious extremist, an elitist, unqualified to lead, and — in one desperate attack — a supporter of child labor.
In an email statement, Friends of Betsy DeVos spokesman Ed Patru explained that the Democrats “tried their best to turn her into Cruella de Vil,” but “the country saw an authentic, compassionate and eminently reasonable education leader who is committed to empowering parents and putting kids first.”
Patru did not respond to a request for comment on the sexual assault issue specifically — likely because DeVos’s primary concern is school choice, and because any response advocating the rights of those accused of sexual assault would likely be misinterpreted as a misogynistic rejection of the problem.
Reforming the OCR, and encouraging more work with the police, is exactly what DeVos should do as secretary of Education. The devious and misleading line of questioning Democrats used on her this week should not deter her pursuit of justice for the accused as well as the accuser.
Here are the videos from DeVos’s hearing.