Should the federal government change its policies on campus sexual assault? Some moves in that direction by Secretary of Education Betsy DeVos have caused an outcry among activists, who see this as an attempt to roll back protections for rape survivors.
In fact, reform is badly needed, and some of the criticism is misguided. But the administration’s ability to accomplish any positive results is limited by incompetence, bad reputation and general chaos.
DeVos and Candice Jackson, acting assistant secretary in the Office of Civil Rights, have been under fire for reaching out to groups that advocate for students accused of sexual assault and for suggesting revisions to 2011 federal guidelines that direct colleges to apply the most complainant-friendly standard of proof (“preponderance of the evidence”) in Title IX cases of alleged sexual misconduct. But bias against the accused in campus proceedings is a problem, as evidenced by more than 100 lawsuits filed in recent years by male students — many of them claiming sex discrimination. The claims have been faring increasingly well in the courts, with more and more judges siding with the plaintiffs and more and more schools choosing to settle.
Some of the lawsuits make for astonishing reading. At Amherst College in Massachusetts in 2012, a man who is now suing for wrongful expulsion was branded a perpetrator when he was arguably the victim. The school accepted his claim that he had no memory of the incident due to heavy intoxication, while the female student’s text messages immediately afterward appeared to admit that she initiated the sexual contact.
The lack of due process in campus sexual assault cases has been criticized by plenty of people who are neither right wing nor anti-woman — from liberal, pro-civil rights law professors such as Harvard’s Janet Halley and George Washington University’s John Banzhaf to feminist writer Laura Kipnis.
Many of DeVos’ critics seem to share the dangerous view that accusation equals guilt. Some have invoked statistics showing that only 2 to 8 percent of rape accusations are false, as if the low rate means that we don’t need to be concerned about railroading the innocents. (Actually, no one knows the real rate of wrongful accusations: the statistics don’t include cases that remain unresolved, or cases in which innocent defendants are convicted but later exonerated.)
A men’s advocacy group that attended the meeting with DeVos has been branded extremist for attacking Sen. Kirsten Gillibrand (D-N.Y.) on Twitter, in admittedly intemperate language; but the “extremist” label does not get applied to an activist championing victims when she sends out a tweet referring to a man who has been cleared of all legal and disciplinary charges as a “rapist.”
Unfortunately, DeVos’ reform effort is unlikely to achieve any real change. Donald Trump’s baggage when it comes to women makes it much easier to paint administration initiatives as misogynist. Even if federal policies on Title IX are amended, it is likely that little will change on college campuses: amid massive backlash, administrators will be hesitant to take advantage of rules allowing them to make the system friendlier to accused men. And states will probably enact their own laws to counteract the federal guidelines and preserve what many see as essential protections for women. The fact that the Trump administration is mired in scandal further weakens its ability to promote its agenda.
That said, there is a certain irony in the fact that while the Trump administration has been repeatedly assailed as hostile to civil rights, DeVos is being attacked for wanting to shore up the presumption of innocence.
Cathy Young is a contributing editor to Reason magazine.