A sea change for sexual conduct on campus

On Nov. 16, controversial U.S. Education Secretary Betsy DeVosElizabeth (Betsy) Dee DeVosDeVos recovering from broken pelvis, hip socket after bicycle accident Student veterans deserve better than the DeVos agenda Changes to Title IX enforcement are common sense MORE issued new Title IX rules on how schools receiving federal funds are to handle accusations of sexual misconduct. Title IX is the 1972 regulation that prohibits gender discrimination in education. Its definition of sexual harassment had expanded dramatically over the years while due process for those accused had shrunk. DeVos’s revision returns to due process. 

A furor greeted its release.  

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The changes do not need congressional approval — only a 60-day public-comment period, ending January 28. So in #MeToo fashion, opponents have used social media to pit an accuser’s “right” to be believed against an accused’s right to due process.

Sen. Kirsten GillibrandKirsten Elizabeth GillibrandMedia reliability questioned over report Trump directed lies to Congress Gillibrand defends past stances on immigration: I would tell voters, 'look at my heart’ Identity politics and the race for the Democratic nomination MORE (D-NY) charged DeVos with throwing “schools to a time where sexual assault and harassment were swept under the rug.” A former education secretary under Barack ObamaBarack Hussein ObamaObama puts out call for service on MLK Day: ‘Make a positive impact on the world’ Trump, Pence visit MLK Memorial Trump offers to limit his border wall to strategic locations MORE, John B. King Jr. called the new rules “cruel” and warned against “putting power in the hands of abusers & dissuading survivors from coming forward.” The ACLU has also joined in; “DeVos proposed a rule that would tip the scales against those who raise their voices. We strongly oppose it.” Actress-turned-activist Alyssa Milano released a video in which she read a faux children’s book written in the style of Dr. Seuss, “A Shitty Christmas Gift.” Title IX revision is the gift. 

The real clash is not female versus male, however. The demand to “always believe the woman” directly conflicts with the legal and moral need for due process for an accused. Due process is neither female or male; it is a human right. Those who encase it in gender terms assume that men always perpetrate sexual abuse and women are always victimized. That’s false. Underreporting makes assessing the rate of male victimization difficult, but the National Sexual Violence Resource Center estimates that “15% of college men are victims of forced sex.”

Statistics are cold things compared to the faces of victims of sexual abuse and false accusations. 

For example, Amanda Hartley has been seeking justice from Agnes Scott College (Georgia) since 2009, when she was falsely accused of brutally raping a female student with various objects. Although Hartley was not on campus when the alleged assault happened, she was imprisoned for three weeks. She endured an isolation cell, beatings by other inmates and repeated cavity searches. She was also expelled from her own university, losing a scholarship and grant money.

Hartley sued Agnes Scott College for $21 million for failure to conduct an investigation. A legal maze followed. A 2014 report from the Georgia Supreme Court described a hearing at which a college officer “reiterated the charges made by the … student but produced no witnesses or physical evidence. The examination at DeKalb Medical had revealed no evidence of trauma or bruising.” 

In 2016 Hartley’s suit stalled due to a mistrial over the misconduct by a juror. In 2018 the Court of Appeals of Georgia dismissed “Agnes Scott’s motion for judgment notwithstanding the mistrial” and found that “Agnes Scott may be [held] vicariously liable.” Presumably, Hartley is continuing her 10-year quest for justice. It would not have been necessary had she been accorded due process.

DeVos’s Department of Education last year rescinded two previous policies that had not undergone the required public-notice and -comment process. This invalidated the 2011 changes introduced by the Obama administration, which had vastly expanded Title IX's original definition of sexual harassment to include “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” The DeVos rules revert to the 2001 definition: sexual harassment occurs “when unwelcome conduct of a sexual nature is sufficiently serious that it affects a student's ability to participate in or benefit from an education program or activity, or creates an intimidating, threatening or abusive educational environment.”

Thus the definition has been narrowed: it refers to actions, not merely words that cause affront. 

The revisions also specify how due process is to be applied. Specifically, the accused is to have the presumption of innocence. Nearly 300 “law professors, other legal experts, and scholars” signed an open letter endorsing the new rules.

The public seems to agree. Journalist Ashe Schow explained a 2017 survey conducted by YouGov for the Bucknell Institute for Public Policy, “Respondents overwhelmingly agreed that due process is necessary for those accused of the heinous crime of sexual assault. Sixty-five percent of Democrats, 77 percent of Republicans, and 67 percent of Independents told researchers they agreed with the statement: ‘Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system.’”

The public correctly takes both sexual assault and due process seriously. Everyone should because human rights do not endanger safety. They are its greatest protection.

Wendy McElroy is a research fellow at the Independent Institute and the author or editor of nine books on women’s issues, government and liberty.