On Friday, Secretary of Education Betsy DeVos announced her revision of federal rules governing campus sexual harassment and assault allegations, and the ACLU, which once believed in the necessity of guarding everyone’s civil liberties, immediately ripped DeVos, claiming, “The proposed rule would make schools less safe for survivors of sexual assault and harassment … It promotes an unfair process, inappropriately favoring the accused.”
As The Washington Post reported, “The proposed regulation replaces less formal guidelines created under President Barack Obama that tilt more toward accusers … Under the proposal, fewer allegations would be considered sexual harassment and schools would be responsible only for investigating incidents that are part of campus programs and activities and that were properly reported. Accused students would be entitled to lawyers and cross-examination.”
The Education Department stated, “The proposed regulation is grounded in core American principles of due process and the rule of law. It seeks to produce more reliable outcomes, thereby encouraging more students to turn to their schools for support in the wake of sexual harassment and reducing the risk of improperly punishing students.”
The ACLU tweeted, “We advocate for fair school disciplinary processes that uphold the rights of both parties in campus sexual assault and harassment cases. Today Secretary DeVos proposed a rule that would tip the scales against those who raise their voices. We strongly oppose it.”
The ACLU added, “The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported. It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence.”
The ACLU was ripped on Twitter:
Rep. Maxine Waters (D-Calif.) predicted the DeVos approach “will prioritize the interests of the institutions and the accused, while undermining protections for survivors.”
In 1972, the federal government passed a law known as Title IX that stated, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Robby Soave, in a cogent article at Reason, explained that under the new rules, instead of a single university administrator investigating the allegation, preparing a report, and passing judgment, “Universities will be required to provide a separate decision maker, either an individual or a group, to determine an accused student’s guilt.” Soave continued by naming three ways in which the new rules will make campuses freer and fairer places: They define sexual misconduct more narrowly; they mandate cross-examination, and they let colleges set their own evidentiary standards but require similar standards for non–Title IX adjudication.
Soave concluded with giving kudos to Devos:
There’s a tempting narrative here—”Trump administration changes law to hurt women”—that will undoubtedly fool many who are unfamiliar with the specifics of Obama-era Title IX abuse. Missing from this narrative is any acknowledgement of the fact that the previous Title IX guidance had created more problems than it solved: Hundreds of young men have filed lawsuits alleging breach of contract and due process violations. Universities found themselves between a rock and a hard place. They could ignore the federal government, and risk their public funding, or they could ignore students’ rights, and risk going to court. This reality wasn’t sustainable, and DeVos’s administration deserves tremendous credit for taking some steps to address the problem.