Although most people associate Title IX with gender equity in sports, the law is a broad prohibition on sex discrimination by schools that receive federal funds. During the Obama administration, the department announced it would cut off funding to schools that refused to adopt particular disciplinary procedures in cases of sexual misconduct.
Critics objected that the Obama guidelines failed to consider basic due process protections for the accused. Others argued that allegations of sexual assault should be investigated by police, not campus bureaucrats who are ill-equipped to determine the truth in situations that often lack witnesses. Civil libertarians argued that, where once many schools gave short shrift to legitimate claims of campus assault, the Obama administration pushed the pendulum too far in the other direction.
Last fall, Secretary of Education Betsy DeVos attempted to right the ship. Although she repealed the Obama-era guidance, DeVos also drafted formal regulations requiring schools to address sexual misconduct. (Although much criticized for its heavy hand, the Obama policy was not a formal regulation and, thus, lacked the force of law.)
One might expect feminists, like Walsh, to applaud the move to codify a school’s obligation to address and prevent gender-violence. But in a letter to DeVos last month, Walsh claims the draft regulations will “diminish the ability of [sexual assault] survivors . . . to receive equal education.”
Walsh’s statement is one of over 100,000 submitted to the Department during the comment period that closed Jan. 30. Others have not been as polite.
“Dear Betsy, [expletive] you. Please resign,” reads one of many vitriolic responses.
This war of words extends far beyond the Federal Register. #MeToo activist Alyssa Milano released a video telling DeVos to “shove [the new regs] up her [expletive].” (Funny how those who complain most ardently about the mistreatment of women find it so difficult to treat some women with even a modicum of respect.)
So, what is it about these regs that has some feminists in a tizzy?
Simply put, the DeVos rules adopt the presumption of innocence. #MeToo activists reject this time-honored principle of Anglo-American law because, well, women don’t lie.
From this perspective, there is no need for procedures to determine, on a case-by-case basis, what actually happened. The allegation is the truth; the sole job of a disciplinary tribunal is to impose justice.
Thus, #MeToo activists see no reason to hold live hearings, to allow the accused to present evidence (text messages, for example) that may call the accuser’s claim into question, or to see how the parties’ stories hold up under questioning.
But if women never lie, why do our courts allow all of these procedures when adjudicating cases of harassment and assault? Does our feminist mayor oppose those rules too?
To be sure, the department’s proposed regulations tighten the definition of harassment to fit within the antidiscrimination framework of Title IX. But colleges and universities remain free to define harassment and assault more broadly and to determine for themselves what student and employee conduct is unacceptable.
Indeed, many colleges and universities already prohibit sexual behavior that is not prohibited by law. Some colleges define any sex under the influence of alcohol as nonconsensual. Others require affirmative, verbal consent to be obtained at each and every stage of coupling. Still others prohibit “manipulating” someone into having sexual relations (whatever that means). And a few religious colleges prohibit all extramarital sex. These policies are not tied to Department of Education regulations. And they are unlikely to change on account of new regs.
Ironically, the strongest argument against the DeVos rules is one that progressives like Walsh are unlikely to make: that the Department lacks the constitutional authority to promulgate rules regarding campus discipline at all. After all, Title IX only prohibits sex discrimination by institutions that receive federal money. It says nothing about campus discipline.
Conservatives, on the other hand, ordinarily favor deregulation. And, yet, most are unwilling to challenge the department’s authority to micromanage campus procedures. They would rather regulate their version of fairness than let the next Democratic administration codify the Kafkaesque procedures in force on most campuses today.
There is, of course, a certain Machiavellian logic to this approach. But the case for due process and safer schools should really be made campus by campus, and not by federal bureaucrats of either party.
Jennifer C. Braceras is a senior fellow with the Independent Women’s Forum.
Originally appeared in the February 19, 2019 print edition of the Boston Globe.