K.C. JOHNSON: Campus kangaroo courts: How Betsy DeVos could take action with regard to Title IX.
Last week, Department of Education secretary Betsy DeVos did something extraordinary: after meeting with students who said that they were sexually assaulted in college, she spoke with seven others who claimed that their institutions had found them guilty of sexual assaults that they did not commit. She also met with a group of lawyers and education administrators, including two attorneys who have represented students accused of sexual assault in subsequent lawsuits against their colleges.
Hearing both sides of a controversial issue would seem routine for any policymaker, but that hasn’t been the case for campus sexual assault. Catherine Lhamon, who headed the Education Department’s Office for Civil Rights (OCR) in the Obama administration, refused to meet with groups advocating on behalf of accused students. She even initially declined, in writing, to confer with representatives from FIRE, the nation’s preeminent campus civil-liberties organization. Lhamon’s approach reflected the Obama administration’s strategy of redefining Title IX—the federal law banning sex discrimination in schools that receive federal funds—without soliciting public feedback. The administration made two important policy changes—one in 2011, the other in 2014—not as regulations, which require public notice and comment, but as “guidance” documents. Then, when asked whether the Education Department expected colleges to follow blindly the documents’ demands as if they were regulations, Lhamon said yes. . . .
George Mason University law professor David Bernstein recently noted that, despite the Obama administration’s reading of the statute, “Title IX itself doesn’t actually speak to specific procedural protections.” More broadly, according to Bernstein, it requires an “aggressive interpretation of Title IX to think it speaks to student-on-student sexual assault at all.” (The interpretation, which made sexual assaults the only felonies that colleges are legally required to adjudicate, dates from a Clinton-era OCR regulation.) But it has become an article of faith among accusers’-rights organizations—joined by Democratic and even some Republican legislators—that any shift in the Obama policies would suggest tolerance of campus rape.
House members who purport to worry about civil liberties in all other contexts fault DeVos for talking not only to advocates of campus accusers but also to advocates for the accused.
To a lot of these people, 1984 wasn’t a cautionary tale, but an instruction manual.