On Friday, the Trump administration took a powerful step in dismantling a negative legacy from the Obama years. Under President Obama, the Department of Education (DOE) pushed the “rape culture” narrative — that one in four women would be sexually assaulted on college campuses, and that colleges could not trust the police to handle these crimes. This created a perverse system of campus tribunals.
Obama’s DOE ushered in this policy with a “Dear Colleague” letter in 2011, and doubled down with another guidance document in 2014. These documents reinterpreted Title IX of the Higher Education Act of 1972, turning a simple ban on discrimination on the basis of sex into a manifesto for colleges to proceed with extreme prejudice against anyone accused of sexual assault. Furthermore, these letters had the effect of a regulation, but were issued as guidance, allowing the Obama DOE to circumvent the usual rule-making process established by law.
In rescinding the Obama-era guidances, Candice Jackson, acting assistant secretary at the DOE’s Office of Civil Rights (OCR), argued that the regulations harmed both those accused of sexual assault and their alleged victims.
“The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints,” Jackson wrote.
Even schools have been frustrated by the regulations. “The guidance has not succeeded in providing clarify for educational institutions or in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires,” the OCR acting head added. “Instead, schools face a confusing and counterproductive set of regulatory mandates, and the objective of regulatory compliance has displaced Title IX’s goal of educational equity.”
Jackson clarified the actual effects of these two pieces of guidance.
“These guidance documents interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct,” she wrote. “The 2011 Dear Colleague Letter required schools to adopt a minimal standard of proof—the preponderance-of-the-evidence standard—in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing-evidence standard.”
Furthermore, the 2011 letter “discouraged cross-examination by the parties, suggesting that to recognize a right to such cross-examination might violate Title IX.” The letter also “forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis.”
In other words, the 2011 letter insisted that schools could not trust the police, so they had to set up their own tribunals. It also urged them to deny basic due process rights (like the right to cross-examine a witness, and in some cases even the right to present evidence in their defense) to those accused of sexual assault.
“The Letter provided that any due-process protections afforded to accused students should not ‘unnecessarily delay’ resolving the charges against them,” Jackson explained.
From a legal perspective, this guidance was absurd on multiple levels. First, college tribunals could not impose criminal sentences, so if someone was actually guilty of rape or sexual assault, the worst punishment a college could inflict is expulsion, thus throwing the rapist out on the street — a result that leaves him free to victimize others.
Second, by imposing lower standards of proof, this process made convictions of sexual assault less convincing. Even if a rapist were convicted in one of these tribunals, he could always say the deck was stacked against him, and the case might not hold up in court afterward. Similarly, a true victim’s status would be more in doubt, as her case was only proved in a prejudiced system.
Finally, innocent people could be branded guilty of sexual assault in cases where the majority of the evidence is in their favor. In one particularly egregious case, an accused man who actually possessed text messages disproving the accusations against him was forbidden to reveal that evidence, lest he “traumatize” his accuser.
In 2012, Cincinnati’s Xavier University expelled black basketball star Dez Wells for allegedly raping another student. But a contemporaneous criminal investigation convinced the county prosecutor that the allegation was false. The prosecutor even considered bringing criminal charges — against Wells’ accuser.
The prosecutor tried to delay Xavier’s action, but it refused. The college did not even allow anyone with a law degree or even “specialized legal training” to represent Wells. The prosecutor made a public statement exonerating Wells and convinced the NCAA to allow him to play basketball after he transferred. Even so, the myth of Wells as a rapist survived, and two women attacked him as a rapist at a basketball game in March 2015.
While Jackson did not cite these cases in striking down the 2011 “Dear Colleague” letter, she did cite a statement from 28 Harvard Law faculty members in the Boston Globe. “Many schools have established procedures for resolving allegations that ‘lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation,'” the OCR acting head wrote.
Furthermore, “the Department imposed these regulatory burdens without affording notice and the opportunity for public comment,” Jackson explained.
“Under these circumstances, the Department has decided to withdraw the above-referenced guidance documents in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits,” the OCR acting head announced.
Unlike the Obama OCR, Jackson explained that under President Trump and Education Secretary Betsy DeVos, “the Department intends to implement such a policy through a rulemaking process that responds to public comment. The Department will not rely on the withdrawn documents in its enforcement of Title IX.”
In reversing the Obama guidance, Jackson took a clear step toward due process and righting the wrongs of an unfair system. But the Trump administration should expect unmitigated liberal rage at this rational move.
One day after a much more limited memo curtailing another aspect of the Obama-era campus rape tribunals, a former Obama administration official launched a two-year investigation into the DOE and Education Secretary DeVos.
Catherine Lhamon, head of the OCR under Obama and now chair of the U.S. Commission on Civil Rights, launched the investigation. Lhamon attacked DeVos’ “repeated refusal in Congressional testimony and other public statements to commit that the department would enforce federal civil rights laws.”
Similarly, the Women’s March Twitter account attacked Trump’s DOE for reversing the Obama guidelines. “Today, the Trump administration put the concerns of abuser over survivors. Again,” the account declared. (This assumes, of course, that anyone who accuses another person of sexual assault automatically becomes a “survivor” and anyone who is accused automatically becomes an “abuser.”)
Today, the Trump administration put the concerns of abusers over survivors. Again.
Trust survivors, always. https://t.co/9us5XuVKk5
— Women's March (@womensmarch) September 22, 2017
Also parroting the liberal line, New York Governor Andrew Cuomo tweeted, “Betsy DeVos is about to make campuses less safe.”
Betsy DeVos is about to make campuses less safe.
New York has the toughest protections in the nation. pic.twitter.com/ncFotPMEcm
— Andrew Cuomo (@NYGovCuomo) September 22, 2017
The Trump DOE is starting to reverse the most powerful damage done under Obama, but the Left will fight back as hard as it can.