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New Title IX Regulations Protect the Innocent

Last week, the United States Department of Education issued new regulations under Title IX concerning how schools must respond to allegations of sexual assault and sexual harassment. Predictably, the regulations have been slammed by groups such as the National Women’s Law Center, which has said that they will “make it harder for students who have experienced sexual harassment to come forward and to get the help that many need.” Given President Trump’s record of disturbing comments about women, including boasting of sexually aggressive behavior, it’s easy to believe that this is an accurate description of regulations set forth by his administration. However, these regulations in fact require a reasonable and balanced approach to a serious problem. They are not about protecting rapists from the consequences of their actions. Rather, they are about protecting innocent men falsely accused of sexual offenses from having their lives destroyed for something that they did not do. The regulations balance this with the important need to prevent sexual assault and punish those who are in fact guilty of this heinous crime.

To understand why these regulations are necessary, we need to turn the clock back nearly a decade to April 4th, 2011. On that date, the Department of Education sent a letter to the president of every college and university in the nation.  Known as the “Dear Colleague” letter for its opening line, it outlined new requirements on how schools must respond to allegations of sexual assault on campus in order to be in compliance with Title IX, a federal law requiring schools to extend equal opportunities to all students regardless of their sex. There was an implied threat that schools would lose their federal funding if they did not comply. The issuance of this letter was of questionable legality. A federal law known as the Administrative Procedures Act requires that the public be given notice before any new regulations go into effect with ample time for citizens to submit comments indicating why they support or oppose the proposed regulations and suggesting modifications. The required notice-and-comment process was bypassed for the “Dear Colleague” letter, depriving the public of the opportunity to weigh in.

There are good reasons why many Americans would have opposed the letter, had they been given the opportunity to comment. Under it, schools were required to establish their own internal tribunals, completely separate from the criminal justice system, in which to investigate and adjudicate allegations of sexual assault on campus. These tribunals were generally staffed by school personnel, not criminal justice professionals, and had the power to expel a student, even if the alleged victim declined to have a police investigation conducted or if the police investigation found that there was insufficient evidence to prosecute. Cross-examination, a right guaranteed to all criminal defendants by the Sixth Amendment, was discouraged by the “Dear Colleague” letter. Schools could prohibit students from having an attorney present during their hearings. They were encouraged to provide an appeals process under which a finding that a student was not responsible for sexual assault could be overturned, violating the Fifth Amendment protection against double jeopardy, under which a defendant cannot be put on trial a second time for the same crime after being acquitted. Perhaps most disturbing is that the letter required schools to do away with the notion of innocent until proven guilty. Instead, they were ordered to use the “preponderance of the evidence” standard, under which a person could be found responsible for sexual assault if the tribunal had as little as a 50.01 percent certainty that he had in fact committed the crime. More recently, many schools have moved to a so-called single-investigator model under which one person simultaneously serves as prosecutor, judge, and jury—a clear conflict of interest.

The schools dutifully implemented the tribunals, and students began to be expelled as a result of their findings. Hundreds of lawsuits have been filed against schools by students claiming to have been innocent. In time, the campus tribunals would come to face criticism from some unlikely sources. The National Center for Higher Education Risk Management, a legal consulting firm that supported the “Dear Colleague” letter, issued an open letter that documented numerous problematic cases it encountered. They recognized that, in practice, schools were often “holding the male accountable in spite of the evidence—or lack thereof—because they think they’re supposed to, and that doing so is what [the Department of Education] wants.” RAINN, the nation’s largest non-profit dedicated to preventing rape, issued an open letter to the White House in 2014 calling for campus tribunals to be de-emphasized because “they lack protections for the accused while often tormenting victims.” They urged the Obama administration to “ensure that colleges and universities treat allegations of sexual assault as they would murder and other violent felonies” by addressing them within the criminal justice system.

The way in which the tribunals have made a mockery of due process is not the only concern with them. They have also threatened free speech. Take, for example, the case of Laura Kipnis, a professor at Northwestern University who wrote an article in the Chronicle of Higher Education criticizing new policies related to professor-student dating. As Kipnis recounts in a later article entitled “My Title IX Inquisition,” she was brought before her university’s tribunal for sexual harassment on the accusation that the mere act of expressing her political opinions in the article created a hostile environment for the school’s women. While she was ultimately found not responsible, placing someone’s career in jeopardy over the course of a months-long investigation for exercising her First Amendment rights can have a chilling effect on free speech. Furthermore, there is the question of whether a man who had written the same article would have received the same favorable outcome in the end. Kipnis herself believes that her success before the tribunal was as much because of her sex as because she was in the right:

When it comes to campus sexual politics, however, the group most constrained from speaking—even those with tenure—is men. No male academic in his right mind would write what I did. Men have been effectively muzzled, as any number of my male correspondents attested.

So, what are these regulations that have been set forth as a solution to this problem? The new regulations continue to require schools to investigate and adjudicate sexual assault allegations so that perpetrators can be removed from campus even if the victim chooses not to press charges.  However, schools are also required to institute a number of much-needed reforms to bring the process in line with the norms of due process that are expected of a democratic society.

Here’s how the process would work under the new rules. A victim of sexual assault or sexual harassment who wishes to initiate a proceeding will file a complaint with the school’s Title IX coordinator. The alleged perpetrator will be informed of the charges against him. At this point, the school may implement interim measures to protect the alleged victim, such as changes to course schedules, no-contact orders, increased security patrols, or in extreme cases, the temporary removal of the alleged perpetrator from campus. These measures are solely to ensure the safety of the alleged victim and may not include anything intended to punish the alleged perpetrator, who has not yet been determined to be responsible.

The school will then investigate the complaint and produce a written report that must be provided to both parties at least 10 days prior to the hearing. When the hearing takes place, both parties may be accompanied by an advisor of their choice, who may be an attorney. The school must provide an advisor to any party who would not otherwise be able to obtain one. The parties will have the right to cross-examination, but questions will be asked by the advisors rather than by the parties themselves, so that victims will not have to be interrogated by their assailants. The person adjudicating the case must be different from the person investigating it; the single-investigator model is now banned. Both must have received training that does not rely on sex stereotypes. Any person who has shown to be biased against either accusers or the accused is excluded from fulfilling either of these roles. In other words, those who believe that women who claim to be rape victims are all lying and those who believe that false allegations never happen would both be excluded. If the accused is found responsible, then punitive measures will then be put in place. This may include expulsion.

Much of the criticism of the regulations centers around the requirement for cross-examination, which the critics believe will deter victims from coming forward. While there may be some truth to this concern, it is important to recognize that the purpose of cross-examination is to expose false accusers, not to intimidate actual victims. It is something that we require in our society before someone can be punished in order to protect the innocent. We require it of all victims of crime and witnesses to crime, not just women or victims of sexual offenses. Even victims of attempted murder and parents who have lost their children to murder are subject to cross-examination in a court of law. Furthermore, the regulations include provisions to minimize the burden of cross-examination upon victims. Schools are required to allow the parties to be in separate rooms with the hearing conducted by videoconference if either party requests it. There is also a rape shield provision that prohibits arbitrary questions about the alleged victim’s past sexual history.

The regulations are not perfect. There are still some ways that they could be improved. For example, while schools are no longer required to use the “preponderance of the evidence” standard, they are not prohibited from using it either. The parties must be provided with advisors, but these advisors need not have legal training. If a student from a poor family that cannot afford an attorney is accused of raping a student from a wealthy family that can, the accused may be at a significant disadvantage. What is at stake here is not small. A student who is wrongly expelled can expect to have severe difficulty pursuing an education elsewhere or procuring employment. In some respects, it may be even worse than having a criminal record. Many states have “ban the box” laws that prohibit most employers from asking applicants whether they’ve been convicted of a crime, but asking about an applicant’s academic record is still fair game. No one should face these sorts of consequences unless they have been afforded the benefits of legal counsel and proven guilty by a more stringent standard than 50.01 percent certainty.

Overall, though, these regulations are a huge step forward from what had existed previously. It is for this reason that organizations such as the Foundation for Individual Rights in Education and the Independent Women’s Forum have endorsed them. Donald Trump may be the worst imaginable spokesman for justice on this issue, but his Department of Education has nonetheless managed to set forth a highly reasonable policy that adequately balances the need to prevent rape and hold those who perpetrate it accountable with the need to protect the innocent from false allegations. Young men across this country who have done nothing wrong should not be thrown under the bus out of anger at the president, however well-deserved that anger may be. The innocent deserve better.

 

The author is a software engineer. Gideon Scopes is a pseudonym. Given the current climate surrounding political expression in the technology industry, his real name has been withheld.

Featured image: Betsy DeVos, Secretary of Education, at a hearing of the Senate Appropriations Subcommittee, Washington, D.C., March 5th, 2020. Michael Brochstein/Alamy Live News.

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The author is a software engineer. Gideon Scopes is a pseudonym. Given the current climate surrounding political expression in the technology industry, his real name has been withheld.

Comments

  1. “50.01 percent certainty.”

    Not to be pedantic, but is that not an oxymoron?

  2. So, what was with the constant need to bash Trump as a sexist oaf, while there was nary a bad word about Obama or Biden, the two jerks who rode roughshod over due process? Biden was happy for the insane idea that accusation was undeniable proof to take root, although he doesn’t feel it applies to his own sexual assault charge.

  3. This article is quite good, but there is one glaring schoolboy error. The author says:

    Perhaps most disturbing is that the letter required schools to do away with the notion of innocent until proven guilty. Instead, they were ordered to use the “preponderance of the evidence” standard, under which a person could be found responsible for sexual assault if the tribunal had as little as a 50.01 percent certainty that he had in fact committed the crime.

    He is confusing two concepts here. The assumption of innocence and the standard of proof are two different things. A tribunal still can uphold the requirement of believing a man is innocent until proven guilty when the standard of proof is lowered to the civil standard (ie. on the balance of probabilities).

  4. Accusations of sexual assault are a criminal matter and should be reported to the police. Why is this not the case?

    Accusations of sexual harassment… as with corporations, each school can set their own standards (and be prepared for lawsuits from either side).

    Title IX was never about this, and was even less about trannies. Amazing what people can make out of something intended for something else. (I can make a hat, I can make a brooch, I can make a pterodactyl…)

  5. From “Know Your IX”:

    Colleges and universities can act quickly to protect students.

    Now let me ask you, what do you prefer, to act quickly or to act wisely? No man no problem? And what about collateral damage?

    This is a serious question, especially considering the tendency of teachers (and parents) to be horrified by the fact that children become adults.
    By the way, the term survivor sounds somewhat strange when applied to the almost any fact of defloration. From this point of view, practically all women fall into this category. Besides nuns, but even not all of them.
    Girls in their 14-18 have a tendency to provocative behavior. They want it, they want to become women. Cosmetics, ridiculous clothes, more suitable for sex divas - you saw it by yourself. At twenty, they dress with much greater taste, they become adult faster than boys.
    I do not condone the boys, they are even more stupid in this matter, but let’s be wiser. One who hasn’t done anything stupid in the youth will never become a good person, be he a boy or be she a girl.

  6. I think that allowing efficiency to overrule justice used to be called lynching. It’s rather disquieting (to say the least) to see so called liberals advocating for it.

  7. Thank you to the Trump administration for much more sensible guidelines, and to this author for laying them out for us.

    I tend to agree with @Benitacanova that sexual assault should be handled by police. University administrators simply don’t have the resources or expertise to investigate and prosecute an actual crime. We have police and judicial systems for that. Administrators attempting to do so simply renders them overburdened, and unable to accomplish their actual mandate: investigating sexual harassment by staff. When I reported that a UC Berkeley professor sexually harassed me, I was ignored for months until I followed up, and I was told the reason for this was because they were busy with sexual assault claims.

    When they did get around to addressing my complaint, they hired an outside council to act as prosecutor, judge, and jury. She did an awful job. The document she produced after months was riddled with typos and sloppy writing. She didn’t seek out any witnesses, even though some of what I alleged happened in front of half the faculty. She operated on the assumption that the harassment took place, without ever establishing that it did, and focused instead on whether the harassment had deleterious effects on my education.

    When the investigator questioned me over Skype, she tried to lead me to say that my educational prospects had been harmed by the harassment. She asked me several times, it was clear to me that she wanted a sob story. I could only tell her that I was working for the center that has produced the bulk of valuable research in my field for the last 20 years, that my two (female) supervisors are top of the field, while the guy who harassed me, Don DePaolo, has done little of note since his supervisor lead him to pioneer Sm-Nd isotope dating 1000 years ago. I also told her Sydney is paradise compared to San Francisco, I love that I’ve had complete freedom to pursue my research as I deemed fit, and that I was relieved I didn’t have to be embarrassed about going to Berkeley when their students started protesting against free speech.

    Shitting on San Francisco is only acceptable for the homeless, apparently, because despite the investigator’s inclination to believe the harassment took place without question, it was deemed to not really be harassment since my academic prospects were unaffected by it. What a convenient little loophole professors are allowed to use to exchange sex for promises of jobs! Clearly only drunk undergraduate boys get the book thrown at them: senior professors can do as they please.

    It’s not just falsely accused men that will benefit from these new rules. I’m quite certain that if my investigator knew someone else was going to read the document she produced, she wouldn’t have done such a shoddy job.

  8. I’d like to point out that faculty members can be victimized by false accusations and lack of due process as well. About a decade ago, a colleague of mine was accused by students and a female colleague of making sexually inappropriate comments. He has a huge personality and an uninhibited sense of humor, but the allegations didn’t ring true based on what I know of his character. As it turned out, both accusations were problematic. The students were overheard by other students complaining about getting bad grades in his class (he was academically rigorous) and expressing a desire to get back at him. Although she was married, the female colleague was very flirtatious and fully reciprocated his off-color jokes. Apparently she became uncomfortable at some point and decided to report him to Human Resources instead of talking directly to him. A third complaint was trivial on its face: during a lecture about reproductive biology he referred to the genital region as the “fun zone.” (He’s not wrong!)

    The sexual harassment investigator only talked to the students making the complaint, not to any of the other students who were present when the alleged incident occurred, or to any of his colleagues. The investigator apparently took the female colleague’s allegation at face value; he had no opportunity to ask her questions or contest her version of events. Ultimately, he was compelled to leave mid-semester, leaving his students in a very difficult position and forcing colleagues in his department to cover the rest of his classes. Although I complained along with other faculty about the unfairness of the process, our criticism was ignored. The good news: he bounced back quickly, leaving academia to become a successful realtor. His wife believed him and they remain happily married to this day.

    Everyone deserves due process. Accusations should be taken seriously and alleged victims should be protected if there’s reason to believe they’re in danger of retaliation, but severe sanctions should never be imposed based on the presumption of guilt. It’s sad that this even needs to be said in the U.S., and shameful that Joe Biden has capitulated to the Woke bloc of his party by promising to repeal the new rules. Hopefully sanity and justice will prevail.

  9. Call in the police and suspend the teacher (usually with pay).This isn’t a difficult problem, and it doesn’t sound related to the university issue.

    Btw, I read that in the 18-24 year old cohort, women not in school are significantly more likely to be sexually assaulted than those in school. Is there a reason for special handling for the more privileged ones?

  10. The prevalence of this attitude among the SJWs is quite disturbing. Everyone who shares this attitude ought to be falsely accused, regularly, until they are disabused of this dastardly notion.

  11. Ella, that is an unfair deflection. The same stsndard applies for weed, etc- in thst case, possession is evidence. Accusation without proof? That’s not enough for any crime

  12. I’m trying to think of a reason why a woman would think an accusation of rape would not be a police matter.

    Rape. Police. No reasoned argument there? Really?

    Who, I wonder, benefits from a system where an accusation of rape is not considered a police matter?

    Women who lie about rape, of course. Who else?

  13. There is no rape culture. There is a chivalry culture. The young ladies are in no unusual danger. The American college campus is one of the safest spaces on the planet.

    The whole thing is lies. Vile, gargantuan lies.

  14. Rape is not “misconduct.” It’s a felony offense and should be treated as such.

    The bottom line is that a lot of these accusations on campus are not rape at all. What mattress girl was talking about is not rape. And if the accusers knew the police would be involved they would probably not dare make such ludicrous claims.

    Meanwhile when real rape occurs, victims are often reluctant to come forward because of shock and shame (I personally know many such cases, including a boy who was gang raped by guys he met at a club). So false accusers do a disservice to the men they accuse and to the real victims, who are less likely to be believed when they do come forward. (I had a friend who was acquaintance raped in Morocco. She went to the cops and the guy simply said she was his wife. That was that. Thank God we live in the western world where rape is taken seriously (it used to be a capital crime in the U.S.), rather than Morocco or in even worse places, where rape victims are imprisoned for unlawful fornication.)

    Rape sucks. It’s awful. But the answer, unfortunately, is not as simple as #believeallwomen. I wish it were.

    As for sexual harassment, which is entirely different, the universities should make their policies (and the consequences) very clear to all staff and students from day one. If I were a male, and saw that I could get suspended or expelled for a sloppy attempted kiss, I would apply elsewhere.

  15. And a A fine afternoon to you, my friend.

    I will have to acknowledge that the majority of those I encounter that attempt to reframe their suboptimal decisions as owing to some form of inevitability do tend to lean at least slightly left, but I cannot confine my observation to that side of the spectrum.

    Allow me to try your patience with an illustrative anecdote, one that I use to make my point with the aforementioned audience;

    I was managing a recreational vehicle supply store that I’d built up from almost nothing on the basis of a business plan presented to the company’s owner. The situation eventually became untenable for me, for reasons not germane to the anecdote.

    When the competition became aware that I was becoming available, I had several offers of employment within a few days. I accepted one. It was with a startup and the salary was low, but I was confident that my presence would accelerate growth and provide remunerative opportunities in the future.

    At the eleventh hour, I was offered another position, and the starting salary was nearly triple of that offer already accepted. I knew the business and people involved with the new offer, and it was a solid opportunity.

    I declined the offer. I had given my word, you see, and aside from the moral implications, I had (and have) a reputation to uphold.

    There were difficulties with the overhead involved in managing the growth of the company for whom I went to work, and the result was that it folded within two years. I take absolutely no responsibility for that failure; I was hired for my expertise, which was ignored at certain crucial junctions.

    The timing was bad. I accepted the offer just before the California real estate hyperinflation began, and I’d deferred buying a home because of the change in employment.

    By the time I put my personal income back on track, I was chasing the market and barely got into a small townhouse before the worst of the bubble inflated, but I paid a premium nevertheless and it required two full-time incomes to obtain and retain that townhouse.

    During the last crash, one of the incomes supporting the household vanished in a puff of smoke, and I was regrettably induced to surrender the collateral, losing about 150K in the process.

    This is what I mean about “bad decisions being okay.” The “inevitability” camp always considers those losses to be a result of bad luck, oppression, etc. Nothing could be farther from the truth. I made a series of decisions that was economically insupportable.

    My reasons were valid to me, but the timing of that decision meant that I paid 50K more for a dingy little townhouse than I could have paid for a three bedroom, two bath residence in a decent neighborhood, had I accepted the last offer, and I could have held that residence (purchased just before the run-up) all the way through the recession. It would have been paid off by now, or nearly so.

    The decision was mine, and I alone am responsible. To engage in the type of intellectually bankrupt sophistry that would have made my bad decision something other than what it was, would do nothing other than guarantee further equally suboptimal outcomes.

    The point of retailing the anecdote within the milieu, to which I initially referred, was to illustrate that I, of all people, knew the gravity of the situation and the risks involved, and that intellectual honesty places all the responsibility on my own shoulders, and that’s the correct way to consider it.

    One type of interlocutor would have me consider myself virtuously superior, another type would have me consider myself a victim. Every single economically aware and financially astute person with whom I’ve shared the story has, without exception, asserted that I should have broken my word and accepted the last offer of employment, thereby obviating all of the resulting misery.

    With one exception.

    I privately discussed this aspect of my personality with Andras (@neoteny.) His direct and not at all unkindly stated comment was that, given the way I interact with the world, I would be well advised to be more judicious with my sworn commitments, but at least I wan’t lying to myself about the facts of the matter. Of all the money-smart folks I’ve talked to, he was the only one that didn’t consider me stupid to make a financially adverse decision on the basis of personal morality.

    Decisions have consequences and responsibilities, and it’s the height of folly to avoid facts. Just acknowledge the facts, learn the lesson, move on with life and, above all, avoid wallowing in the mire of sophistry and delusion as best as one can. A resilient ego, aided by a good sense of humor, will readily accommodate an awareness of one’s own foolishness without a resulting descent into excessive amounts of counterproductive self-flagellation.

    Does that clarify the position, Ray, or merely obscure it even further?

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