On Wednesday, Education Secretary Betsy DeVos issued new rules regarding Title IX, the federal statute the governs sexual misconduct in schools. Her rules firmly rejected the infamous 2011 “Dear Colleague” letter that led colleges and universities across America to deny due process to those accused of sexual assault. In practical terms, this equates to rejecting the utterly unfair standard applied to then-Supreme Court nominee Brett Kavanaugh and adopting a more balanced approach, like the left-leaning media has decided to give to presumptive Democratic nominee Joe Biden.
“Two years ago, I promised to address the scourge of sexual misconduct on our nation’s campuses. The new [Title IX] regulation delivers on that promise. It treats all students fairly and holds all schools accountable if they fail to protect their students,” DeVos announced on Twitter. A Department of Education (DOE) spokesperson promised the new rules will “balance the scales of justice on campuses across America,” Reason‘s Robby Soave reported.
Two years ago, I promised to address the scourge of sexual misconduct on our nation’s campuses. The new #TitleIX regulation delivers on that promise. It treats all students fairly and holds all schools accountable if they fail to protect their students: https://t.co/HEuugNWBe0
— Secretary Betsy DeVos (@BetsyDeVosED) May 6, 2020
The scales of justice were indeed in need of balancing. In 2011, the DOE under President Barack Obama issued guidelines for schools to handle sexual assault claims based on the premise that there is a pervasive “rape culture” on college campuses. According to this narrative, one in four women would be sexually assaulted in higher education, and colleges could not trust the police to handle these crimes. Therefore, schools were encouraged to create a perverse system of campus tribunals that denied due process to the accused on the presumption that anyone accused of sexual assault must be guilty.
Sound familiar? When Christine Blasey Ford (a Democrat) came forward to accuse Kavanaugh of sexually assaulting her decades before his Supreme Court nomination battle, many left-leaning media outlets, activists, and Democrats insisted that Americans should “Believe All Women.” They dismissed the testimony of 200 women who said Kavanaugh always treated them with respect, going back to his high school years. They dismissed the fact that Ford had not reported the incident to anyone — much less the police — and that her story had no corroboration. Instead, they launched a witch hunt against Kavanaugh, and four more accusations — two of them anonymous and each more ridiculous than the last — tarnished the nominee’s reputation.
Yet these politicians and campaigners appeared to turn on a dime when Tara Reade, a former staff assistant to then-Sen. Joe Biden (D-Del.) accused Biden — now the presumptive Democratic nominee for president — of sexual assault. The very politicians who had chanted “Believe All Women” insisted that they believed Joe Biden, even before he publicly denied the allegations! Gov. Gretchen Whitmer (D-Mich.), who had loudly condemned Kavanaugh, even said, “I really resent” having to discuss the claims against Biden.
Mika Brzezinski, co-host of the MSNBC show Morning Joe, insisted that “the media should not apply what seemed to be a Kavanaugh standaard to Joe Biden. The media should not apply the same standard most applied to Judge Kavanaugh to Donald Trump. The media should not apply a Kavanaugh standard to any public figure.” She explicitly rejected “the blanket and absolute standard of simply believing all women.”
“The standard for the media in covering sexual assault allegations needs to be to report the facts, listen to the accuser, and give the accused full due process,” Brzezinski said.
.@morningmika: "The media should not apply what seemed to be a Kavanaugh standard to Joe Biden. The media should not apply the same standard most applied to Judge Kavanaugh to Donald Trump." pic.twitter.com/4Csq5Hms8q
— Townhall.com (@townhallcom) May 1, 2020
If that’s true for the media, it is even more important for colleges and universities. Under the 2011 guidance, schools essentially applied the Kavanaugh standard to students accused of sexual assault. Campus rape tribunals believed accusers and often punished the accused — even when the best evidence contradicted the accusations. Students were routinely denied the right to cross-examine their accusers, the right to present evidence in their defense, and the right to be represented by a lawyer. While schools could not place the accused in prison, their determinations of guilt — even when blatantly false — destroyed students’ lives and reputations.
Lawyer Naomi Shatz went through DeVos’s new rules and found some encouraging changes.
“Title IX coordinators and investigators cannot have a bias for or against complainants or respondents generally. This is big. Many Title IX claims have failed in court because courts decided that bias for/against complainants/respondents wasn’t sex discrimination,” Shatz noted.
10) Grievance processes must include presumption that respondent is not responsible.
— Naomi R. Shatz (@NaomiShatz) May 6, 2020
Under the new rules, the accused also has the right to “inspect and review any evidence obtained during the investigation that directly relates to the allegations raised, including evidence that the school does not intend to rely on in reaching its decision.” Schools must also give both parties ten days to review the evidence — an important reversal of the current practice where many schools only allow the parties to review evidence in a specific location.
Importantly, the new rules also protect the free speech rights of students, particularly the accused.
34) The anti-retaliation provision specifically notes that exercising First Amendment rights does not constitute retaliation.
— Naomi R. Shatz (@NaomiShatz) May 6, 2020
“This new rule strikes a powerful blow against campus censorship,” said a Department of Education spokesperson. “Campus free speech must not be sacrificed in the misguided pursuit of any other value.”
Yet victim’s rights advocates have already announced their decision to fight the new rules in court. Catherine Lhamon, current chair of the U.S. Commission on Civil Rights and the former Obama administration official who pushed the “rape culture” tribunals, demonized the new rules. “[Betsy DeVos] presides over taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.”
This is absurd nonsense. DeVos is still ordering schools to take sexual assault claims very seriously, but she’s also “balancing the scales of justice” to avoid an unjust “Kavanaugh standard” from ruining the lives of students who are falsely accused of sexual assault.
Whether you’re a college freshman or a candidate for president, you deserve the same due process and presumption of innocence if you’ve been accused of sexual assault. DeVos’s new Title IX rules reverse the Obama-era “Kavanaugh standard” for a much fairer “Joe Biden standard.” These new rules should be celebrated, not vilified.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.