POSTED BY MARTIN KICH

The first item is an article written by Frederick M. Hess and Grant Addison for the National Review. Titled “DeVos Moves to Reign in the Campus Kangaroo Courts” and sub-titled “Her Fine Speech and Pledge to Act Are Worth Commending,” the article opens with the following paragraphs:

In an anticipated speech yesterday, delivered at George Mason University’s Antonin Scalia School of Law, Secretary of Education Betsy DeVos announced that the U.S. Department of Education is moving to end the reckless Title IX enforcement regime adopted by the Obama administration. The speech reflected a welcome regard for statute after years of executive-branch adventurism and, more important, a much-needed push to begin correcting for the kangaroo-court insanity that Obama-administration ideologues unleashed on college campuses.

DeVos appropriately framed her remarks by hailing twin imperatives: the need to protect all students on college campuses from sexual harassment or assault, and the need to ensure that those accused of such acts are treated fairly. Especially for someone who has had her share of stumbles in public remarks, DeVos delivered a well-crafted speech with aplomb. The balance and tenor of her remarks was just right.

She opened by flatly declaring, “Let me be clear at the outset: Acts of sexual misconduct are reprehensible, disgusting, and unacceptable. They are acts of cowardice and personal weakness. . . . One rape is one too many. One assault is one too many. One aggressive act of harassment is one too many. . . . Survivors aren’t well-served when they are re-traumatized with appeal after appeal because the failed system failed the accused.”

But DeVos also proceeded to do something that her Obama-era counterparts never did, which is to carefully affirm that we do not protect or support victims by railroading the accused through sham processes. As DeVos put it, “One person denied due process is too many. . . . Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined. . . . Due process either protects everyone, or it protects no one. The notion that a school must diminish due-process rights to better serve the ‘victim’ only creates more victims.”

 

Given its title, “Betsy DeVos, Title IX, and the ‘Both Sides’ Approach to Sexual Assault,” one might expect that a very different view of DeVos’s speech to be provided in an article written by Jeannie Suk Gersen for the New Yorker. Gersen is a Harvard Law Professor, and the title of the article obviously echoes Trump’s much criticized assertion that both sides were to blame for the violence in Charlottesville. Yet, although she pointedly plays off those echoes, Gersen actually seems to complement much of what Hess and Addison say, though her language is less obviously partisan and inflammatory. Here are some of the key passages:

After the speech, DeVos explicitly told CBS News that, while the Obama Administration’s policies on sexual misconduct are not now being rescinded, the current process—which will take months, if not years—will eventually lead to legal rules that are intended to replace them.

Title IX requires schools that receive federal funds not to discriminate on the basis of sex. The law itself does not mention sexual violence, but its interpretation by courts and by the Education Department since the law’s passage, in 1972, has led to the common understanding that Title IX’s ban on sex discrimination requires schools to address sexual violence among students.

Criticizing the previous Administration’s enforcement methods, DeVos said that “rather than engage the public on controversial issues, the Department’s Office for Civil Rights has issued letters from the desks of un-elected and un-accountable political appointees.” She was primarily referring to the “Dear Colleague Letter” issued by the Obama Administration in 2011, which provided instructions on how schools must investigate and adjudicate accusations of sexual violence. The letter itself stated that it could not create any new legal obligations, because it was issued without the process of public comment that is required to make an agency’s pronouncements legally binding. Yet the Education Department seemed to treat the letter as if it were law in investigations and enforcement proceedings against schools. The Dear Colleague Letter has also become a powerful dual symbol: of support for sexual assault victims on the one hand, and of failures of campus due process on the other.

The non-binding status of the Dear Colleague Letter meant that a new Administration could easily retract it with another letter, much in the same way that the Trump Administration retracted the guidance on transgender students earlier this year. But DeVos pointedly did not do this, declaring, “The era of ‘rule by letter’ is over.” Instead, she announced that the agency would engage in precisely the notice-and-comment rulemaking process that the Obama Administration chose to skip.

Judging by DeVos’s speech, what has been portrayed as a rollback of Title IX is really an embrace of a framework of compatibility: one in which Title IX seriously addresses sexual violence and also requires fairness to the accuser and the accused. . . .

Calling the “current reality” a “failed system” in which “everyone loses,” DeVos noted, “Survivors aren’t well-served when they are re-traumatized with appeal after appeal because the failed system failed the accused.” When schools use an unfair process to discipline students, she suggested, even guilty parties can be vindicated later in lawsuits in court. Sloppy campus processes lead to general lack of confidence in the results, and further undermine the interests of sexual-assault victims. . . .

If these statements were made by a different official in a different Administration, they would seem rational, uncontroversial, and even banal. The idea that an adjudicatory process should be fair to both sides is about as basic as any facet of American law can be, even when it is articulated by an individual who is noncommittal on the basic educational rights of L.G.B.T.Q. students and students with disabilities, and who believes that guns belong in schools to protect against grizzly bears. But in these times, especially following the equivocal statements made by President Trump on the violence in Charlottesville, the very concept of “both sides” may approach moral peril (to say nothing of the fact that Trump himself has boasted of sexual assault).

In the period since the Obama Administration first brought sexual assault to the foreground of Title IX enforcement, the courts’ and the public’s views have developed to crystallize around the idea that Title IX protects the fair treatment of accusers and accused, women and men. What promises to emerge from the new rulemaking process—which will generate mountains of public input—is more, rather than less, regulation and enforcement of schools’ obligations to all parties under Title IX.

 

What neither article takes into account, however, is the persistent furor in the Far Right media over the last six months to a year over the supposed widespread persecution of male students accused under Title IX, largely to the exclusion of any continuing or equivalent concern for female victims of sexual harassment, sexual impropriety, and sexual assault. I have been criticized for previous posts to this blog in which I have pointed out that the major weakness of Title IX enforcement is that, in practice, it blurs the distinctions between student conduct issues and criminal acts. Moreover, the failure to treat allegations of criminal acts appropriately and effectively through the criminal justice system both created the need for Title IX and has continued to make the ostensible solutions provided by Title IX much more problematic than they ought to be. What the Far Right focus on the supposedly widespread persecution of accused male students has ignored is that if accusations of sexual assault were treated in the same way that campus burglaries, robberies, and other assaults are investigated and prosecuted, a significantly higher percentage of the accused would likely be found guilty in criminal courts.

So, in the case of DeVos’s speech, context is indeed everything. Even if one applauds the major assertions made in the speech, what exactly is the basis for believing that the results of any process that DeVos and the Trump administration undertake will help to resolve very complex issues with a long and complicated history? I cannot identify a single other thing that DeVos has done as Secretary of Education that I would applaud. Likewise, I cannot think of a single thing that the Trump administration has done to advance the socio-economic potential, to promote the political influence, or to protect the basic rights of women in our society. In fact, I can rattle off fairly long lists of instances in which DeVos and the rest of the Trump administration have been very contented to mouth longstanding, regressive Far Right talking points and to roll back initiatives intended to insure that women, as well as a whole host of other underrepresented groups, have equal status and influence in the processes and the institutions that are most fundamental to our society.

In sum, in this instance, I think that there are a lot of reasons to hold our applause until we see the actually results of what seems a reasonably defined process but one that has to be considered almost in isolation in order to be accepted at face value.

 

Hess and Addison’s complete article is available at: http://www.nationalreview.com/article/451191/betsy-devos-title-ix-campus-courts?utm.

Gersen’s complete article is available at: https://www.newyorker.com/news/news-desk/betsy-devos-title-ix-and-the-both-sides-approach-to-sexual-assault?