Last week, the American Civil Liberties Union, the veteran civil rights organization, filed a lawsuit challenging a newly enacted Trump administration policy change. The twist: The policy change is one that has been praised by numerous civil libertarians as expanding due process for people accused of offenses. The matter at hand is the enforcement of Title IX, the federal statute that bans sex discrimination in education and covers college disciplinary proceedings in cases of sexual harassment and sexual assault.
Secretary of Education Betsy DeVos first proposed Title IX reforms and solicited community input three years ago, causing an outcry because the activists with whom she met at “listening sessions” included not only advocates for victims of campus sexual assault but also advocates for the accused. (Disclosure: I have been a paid speaker at events held by two of the groups that participated in those meetings.) Progressives quickly denounced the proposed reforms as rolling back protections for women on campus.
Yet DeVos’ move was a response to Obama administration policies that were criticized not only by conservatives but also by liberal feminist law professors such as Harvard’s Jeannie Suk Gersten and Janet Halley.
In 2011, the Department of Education’s Office of Civil Rights sent the heads of colleges and universities a guidance on Title IX proceedings — most notably directing them to evaluate sexual assault complaints under a “preponderance of the evidence” standard, the lowest burden of proof in the legal system. This means that if the investigator or disciplinary panel concludes there’s more than a 50-50 chance the accused committed the offense, he or she is responsible. (Earlier, many schools had used a much higher “clear and convincing evidence” standard.) A 2013 federal “blueprint” threatened to yank federal funding from non-compliant schools.
In the following years, reports of overzealous enforcement in murky cases often involving mutual intoxication proliferated — including lawsuits by plaintiffs (nearly always male) who said they had been unfairly expelled. Increasingly, federal courts began to green-light such lawsuits. In one case that was recently allowed to proceed against Columbia University, the plaintiff, Columbia Journalism School student Ben Feibleman, was found responsible for misconduct for sexually touching a female student deemed too drunk to consent — despite an audio recording that showed her demanding sex and photos taken moments before the alleged assault that showed she was not incapacitated. Feibleman’s journalism diploma was yanked post-graduation.
The new DeVos guidelines include some changes that even the ACLU supports, such as the requirement of live hearings (in too many cases, sexual assault complaints were adjudicated by a single investigator), of opportunities for cross-examination and legal representation, and of access to the evidence for both parties. But the ACLU opposes the rule change that allows colleges to use the “clear and convincing evidence” standard.
This seems like a grievously misguided stance for the veteran civil rights organization. A 50.1% chance of guilt is an absurdly low standard for subjecting someone to sanctions that, while not equivalent to criminal penalties, may effectively mark a person as a sex criminal. (Such a standard also encourages subjectivity and guesswork.)
In another ironic twist, those opposing the new guidelines also include former Vice President Joe Biden, who championed the Obama-era policy and now promises to undo the DeVos reforms if elected. Yet he himself has just been the target of what now looks like a wrongful accusation of sexual assault. Perhaps this experience will remind the man who I hope will be our next president that the accused deserve protections, too — and encourage him, at least, to tread carefully before undoing a rare positive Trump-era legacy.
Cathy Young is a contributing editor to Reason magazine.