Trump administration officials have finally released new proposed rules dictating how colleges and universities should investigate accusations of sexual harassment and sexual assault. The proposed rules are a much needed improvement on the Obama administration’s 2011 “Dear Colleague” letter that forced schools to assume guilt or risk losing federal funding.
The new rules will go through a notice-and-comment period that is necessary to conform to the Administrative Procedure Act regarding regulations. The Obama-era rules did not follow proper procedure but were still treated as if they carried the force of law.
Even more important, the new rules bring some necessary due process and sanity to school adjudication — something also lacking in the Obama era. Students accused of sexual harassment or sexual assault (nearly all male) will have an actual chance to defend themselves, as the new rules as written require schools to allow cross-examination and provide the accused with all the available evidence — both exculpatory and inculpatory.
If you’re scratching your head right now over how these two obvious elements of due process weren’t included previously, you’re not alone. The Obama administration fully catered to the “Believe All Women” crowd when it came to sexual misconduct. Because accusers (who were nearly all women) were believed outright, the accused was presumed guilty until proven innocent (and even then they were guilty).
Across the country, accused students (mostly men, and far too often minority or immigrant students) lacked the ability to cross-examine their accusers or witnesses against them, something multiple courts have ruled to be a foundation of fairness and due process. The Sixth Circuit Court of Appeals ruled in September 2017 that when credibility is at stake (such as in a he said/she said situation), cross-examination is necessary. The new proposed federal rules mention this opinion:
For institutions of higher education, the recipient’s grievance procedure must provide for a live hearing. At the hearing, the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at a hearing must be conducted by the party’s advisor of choice, notwithstanding the discretion of the recipient under paragraph (b)(3)(iv) of this section to otherwise restrict the extent to which advisors may participate in the proceedings. If a party does not have an advisor present at the hearing, the recipient must provide that party an advisor aligned with that party to conduct cross-examination.
Many schools didn’t even require the accuser or her witnesses to attend the hearing, meaning the accused could not question their claims. Some students weren’t even told the actual accusations against them. Some weren’t given the evidence against them. Others weren’t allowed to present evidence in their defense. Other schools refused to accept exculpatory evidence after a decision was reached.
The new Education Department rules also remind schools that unfair procedures against accused students could violate Title IX, the statute used to force schools to adjudicate such claims in the first place, as Brooklyn College history professor K.C. Johnson noted on Twitter.
"… likewise, a respondent can be unjustifiably separated from his or her education on the basis of sex, in violation of Title IX, if the recipient does not investigate and adjudicate using fair procedures before imposing discipline,” the new rules state. “Fair procedures benefit all parties by creating trust in both the grievance process itself and the outcomes of the process.”
This is something I’ve argued for years. If women are the main victims of sexual assault, and schools not helping them amounts to sex discrimination, then it is also sex discrimination against men, who are the main accused, to not receive a fair process.
In creating the new rules, Education Secretary Betsy DeVos spoke to victims' advocates, lawyers, school officials, and pro-due process groups. She also spoke to victims and falsely accused students.
Naturally, anti-due process activists and those who claim every accusation is true took issue with the new rules. An article from ABC News claimed accusers would, under the new rules, have to prove that the misconduct they alleged was so severe it prevented them from attending school. This was an absurd misreading of a 20-year-old Supreme Court case which defined sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
This is common sexual harassment language and in no way means someone has to prove they couldn’t attend school. As National Review’s David French wrote, it merely means an accuser has to prove they lack “equal access - that your access to the program or activity is fundamentally tainted by harassment.”
ABC also claimed, “A small group of mens’ rights groups have pushed for the changes, contending that schools have gone too far and provided little due process to the accused.” This is also absurd. Harvard and Pennsylvania State University law professors have spoken out about the fundamental unfairness of the Obama-era rules, as have civil liberties groups. There are also more than 100 court opinions siding with accused students who were treated unfairly by their schools.
Other anti-due process activists, like Sens. Kirsten Gillibrand (D-NY), Patty Murray (D-WA), and Dianne Feinstein (D-CA) have claimed the new rules would “silence victims” and keep them from coming forward.
What has happened on college campuses has been a dismissal of sanity. The definition of sexual assault and harassment has been broadened to make anyone aggrieved believe they are a victim. So many accusers have been led to believe they are victims when they are not. People like the senators mentioned above have been fine with this in pursuit of a particular narrative.
Hopefully these new rules will return sanity to the country, and stop traumatizing people who would not otherwise be traumatized.