Lost behind recent, louder political headlines, the controversial buzz this week has been about Education Secretary Betsy DeVos peeking behind the curtains of higher education. She’s scrutinizing the kangaroo courts known as university disciplinary proceedings, and the role of pressure from her own department’s Office of Civil Rights (OCR) in driving the problem. Indications are, she has concerns about what she’s seeing.
Regarding issues like alleged hate speech, civil rights violations, or sexual misconduct, universities have gained a bad and well-deserved reputation for trampling the rights of the accused while pressing for politically correct results in support of leftist oppression narratives. University administrators certainly can be overbearing wardens, but a lot of the pressure they are bending to comes from the OCR. DeVos’s willingness to take the issue seriously and consider corrective measures is driving fury and apoplexy on the Left.
“Enabling rape deniers,” “legitimizing rape,” “embracing misogynists,” “bizarre Christian tilt,” “enemy of victims” are a few of the howls from the liberal blogosphere. These criticism are bogus reactionary leftism. Ms. DeVos is looking into a flawed system that is bad at what it does, cannot adequately supervise hormonal college students of both sexes or protect real victims, often stomps on the accused in an effort to compensate, and sows injustice and broken lives along its relentless path.
The New York Times was more evenhanded in its treatment, and reported DeVos is grappling with important dilemmas. “[A] system without due process ultimately serves no one in the end,” the Times quoted her as saying. Still, DeVos is not looking to return to any bad old days of injustice and sexist dismissal: “We can’t go back to the days when allegations were swept under the rug and I acknowledge there was a time when women were essentially dismissed. That is not acceptable.”
How things came to this pass follows a convoluted story. In brief overview, universities are operating under a law that is not designed to police college sex. Federal regulators have pressed the law and universities into applications neither it nor they were designed to address. College hook up culture is, arguably, an untamed frontier of a setting to try to enforce modern feminist theories challenging commonly held understandings of consent, and expanding concepts of assault or misconduct. Universities are institutionally incapable of justly adjudicating the tensions and fissures that result.
The legal story starts with Title IX of the U.S. Code. Passed by Congress in 1972, that law establishes a simple and reasonable standard: educational institutions that receive federal money may not discriminate on the basis of sex. If they are found to discriminate, they risk losing federal funds. Essentially, it is an education sector supplement to laws prohibiting sex discrimination in employment and public accommodations.
In barring sex discrimination, Title IX has been pressed into service of theories that might seem to stretch its original concept, such as creating a de facto quota system in high school and college sports, to ensure that the number of athletic participants accurately reflects the sexual composition of schools. While it has done much good in expanding opportunities, critics assert it has caused harm in forcing to schools to eliminate some sports traditionally pursued by men, and to add new women’s teams to make sure the percentages balance.
More recently, it has sparked some scrutiny of the rather male slant of faculties in the hard sciences at major universities.
One area federal officials pushed Title IX in recent decades is addressing increased reports of sexual misconduct on college campuses. Since at least the 1990s, often under pressure from federal regulators, colleges have more actively policed allegations of assault or misconduct.This apparently healthful development, though, poses important questions. Certainly, schools should not tolerate known sexual assault or abuse within their spheres of authority. But, does that necessarily mean schools should be the arbiter of when violations occur?
Sexual assault is against the law. It is a civil and criminal violation. There are civil and criminal authorities and courts that police and administer justice in these things. Under pressure from activists and regulators, and perhaps a bit of mission creep from turf-building administrators, colleges have moved to occupy this space as well.
The record of such intervention has been problematic. It accelerated under a controversial move by the Obama OCR in 2008. College disciplinary proceedings are not courts of law or bound by the codes of criminal or civil procedure. Media attention and federal pressure have generally pushed far more toward protecting victims and punishing predators than to ensuring due process, fair proceedings, and just results. Academic KC Johnson and journalist Stuart Taylor have documented a litany of abuses of accused sexual aggressors: Limited or no access to relevant accusations or evidence; limited access to help by or participation from legal counsel, no right to confront or cross examine the accuser, withholding or exclusion of exculpatory information, such as evidence that suggested sexual contact was voluntary, and, harsh consequences and sanctions, often even before any official hearings or determinations occurred, and so on.
In 2008, Obama’s DOE kicked the already slanted deck with what is referred to as a Dear Colleague Letter. The letter essentially ordered universities to lower the evidentiary bar for accusers from “clear and convincing evidence” (which was already below the criminal standard of “beyond a reasonable doubt”) to the ordinary civil standard of “preponderance of the evidence” which effectively means even a 1% stronger belief in the accuser’s charges than the denials of the accused requires universities to find for the accuser and deliver punishment to the accused.
This intervention by correspondence worked two kinds of injustice. First, it was a change in federal policy without any of the niceties of passing a real regulation, such as chance for public comment and opposition to the change. But, the letter left it sharply clear that schools would comply, or they would risk federal enforcement and loss of funds.
Second, an ordinary preponderance standard is grossly inadequate for the ruinous consequences that universities can inflict. A negative finding will result in expulsion, loss of educational opportunities, including enrolling in other schools, loss of employment prospects, humiliation before peers, friends, family, and community. This is not the stuff of a civil damages law suit. It is life scarring.
Activists, administrators, and regulators argue that the consequences of sexual assault are worse, and cut and scar more deeply. They are probably right. But that is exactly why there are public institutions whose role it is to apply the law and seek just results. Even in a civil sexual harassment case with lesser potential for ruin than a university “judgment,” an accused has greater rights and standing to defend, answer charges, and seek a just outcome.
This is the context that Betsy DeVos is wading into. How did universities become the presumed sexual parents and guardians of student behavior on campus? Is that even authorized by existing law? Are universities equipped for the task? Have the scales tipped too far in pressing for a “conviction”? Would it make more sense to rely on civil and criminal authorities and return the academic focus to education?
These are important questions. The Department of Education is appropriately considering them.