Progressive Governor Jerry Brown (D-Calif.) has now officially agreed with Trump Education Secretary Betsy DeVos. On Sunday, he vetoed a bill that would have made the Obama-era Department of Education (DOE) guidance on sexual assault permanent in California. Even better, Brown rejected the bill citing due-process concerns often dismissed by the Left as “propaganda.”
“This is not a simple issue. Sexual harassment and sexual violence are serious and complicated matters for colleges to resolve,” the governor wrote in a statement on his veto. “On the one side are complainants who come forward to seek justice and protection; on the other side stand accused students, who, guilty or not, must be treated fairly and with the presumption of innocence until the facts speak otherwise.”
Brown stood by his affirmative consent law, stipulating clear standards for colleges to adopt on sexual assault. But he acknowledged that “since this law was enacted … thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault — well-intentioned as they are — have also unintentionally resulted in some colleges’ failure to uphold due process for accused students.”
In a rare statement of wisdom from a progressive governor, Brown wrote, “I am not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven’t yet ascertained the full impact of what we recently enacted.”
“We may need more statutory requirements than what this bill contemplates. We may need fewer. Or still yet, we may need simply to fine tune what we have,” the governor concluded. Would that all progressive legislators were this humble and circumspect about applying new policy.
Brown’s veto does indeed come at a time of shifting federal guidance on this issue. The Obama administration pushed a “rape culture” narrative that one in four women would be sexually assaulted on college campuses and that colleges could not trust police to handle these crimes. This created a perverse system of campus tribunals that put due process rights in jeopardy.
Obama’s DOE issued a “Dear Colleague” letter in 2011, and bolstered this policy with another guidance in 2014. These documents reinterpreted Title IX of the Higher Education Act of 1972, turning a ban on sex discrimination into a manifesto for colleges to proceed with extreme prejudice against anyone accused of sexual assault.
Activists and politicians like Hillary Clinton insisted on calling any woman who accused a man of sexual assault a “survivor,” rather than a complainant, and men who were falsely accused (and later acquitted) have been branded “rapists” long after their names were cleared.
Trump’s Education Secretary Betsy DeVos has championed due process for the accused, however. Her acting assistant secretary at the Office of Civil Rights (OCR), Candice Jackson, rescinded the 2011 and 2014 documents.
“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.
Students branded rapists have been denied basic rights: the right to face an accuser, the right to representation by a lawyer, and even the right to know the charges against them. The Obama-era guidance also suggested a lower evidentiary standard for conviction, making it harder for accused students to defend themselves.
Ironically, the guidance has also made it less likely for true victims of sexual assault to receive justice and prevent offenders from victimizing others. If a campus tribunal finds a man guilty of sexual assault, the worst punishment he can receive is expulsion — a harsh sentence for an innocent man, but almost a get-out-of-jail-free card for an actual rapist.
Partially because defendants are given real due-process rights in a court of law, and partially due to a higher standard of proof, there is less doubt about a sexual assault conviction when it is handled by the legal system. Perhaps even more importantly, however, that system can award jail time, taking rapists off the streets.
If a rapist is tried and found guilty by the police, he will be removed from the streets and his conviction is more trustworthy. If he is tried and found guilty in campus tribunals, not only will he still be free from prison, but his conviction is also less certain. This is a worst-case scenario for a true victim, whose rapist gets off easy and who could be victimized again by the same person.
Even so, the Left has fought back against DeVos and Jackson, accusing them of making campuses less safe. Indeed, one day after DeVos published a memo curtailing an aspect of the campus rape tribunals, a former Obama administration official launched a two-year investigation into the Trump DOE.
Catherine Lhamon, head of the OCR under Obama and now chair of the U.S. Commission on Civil Rights, launched the investigation, attacking DeVos’ “repeated refusal in Congressional testimony and other public statements to commit that the department would enforce federal civil rights laws.”
The Women’s March Twitter account also branded all the accused as guilty. “Today, the Trump administration put the concerns of abuser over survivors,” the leftist account wrote. This automatic presumption of guilt is the very problem at the root of the entire debate — and it is fundamentally at odds with the legal principle “innocent until proven guilty.”
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
At the very least, Governor Jerry Brown knows better. Then again, Americans should be concerned that the California legislature passed a law upholding the Obama-era guidance on Title IX. The nation’s most populous state almost enshrined the assumption of guilt in campus sexual assault cases into permanent law.
Even as DeVos and Trump’s DOE start to reverse the injustice of the last administration, the Left continues to push for a system of campus tribunals that violated the very principle “innocent until proven guilty.” Brown’s veto is quite notable, and hopefully his remarkable humility and leadership will show Democrats that they need not follow Obama’s disastrous lead on this issue.
Jerry Brown has become a living example that being a Democrat does not entail opposition to due process. The Left should pay close attention.