The Trump administration is preparing to roll back disastrous Obama-era regulations that have fostered kangaroo parallel courts on campuses around the nation, The New York Times recently reported based on a leaked draft of proposed changes. In a first for the Trump U.S Department of Education, this rollback will also undo Clinton and Bush-era policies, all to adhere more closely to the actual 1972 law and reigning Supreme Court precedent, an administration official told The Federalist.
So far, USDOE has mostly taken some steps to undo only the President Obama regulations most brazenly untethered from the underlying laws rather than any comprehensive overhauls, much less a comprehensive audit of the department’s mostly unconstitutional activities to get Congress to fix the major wasteful and harmful distortions federal laws create at all levels of U.S. education.
The forthcoming Title IX regulations would extend some basic civil rights protections from criminal courts also to those accused of heinous sexual crimes before college discipline committees. According to the New York Times story, which the Trump official said accurately summarizes what’s on the table pre-White House and Office of Management and Budget input, “The regulations require that schools approach all investigations under the presumption that the accused is innocent until proved guilty.”
The new regulations are “a tacit endorsement of making campuses a safer place to commit sexual assault, rather than a safer place to learn free from violence,” Jess Davidson, the executive director of End Rape on Campus, ludicrously told the Times. In truth, they are basic, common-sense rules most Americans support and that are already operative within America’s criminal justice system, for good reason.
Most Americans Support These Common-Sense Rules
A poll last year found 65 percent of Democrats, 67 percent of independents, and 77 percent of Republicans agree that college students should have the same civil liberties protections as people accused of crimes in real courts. That poll also found supermajority support for other New York Times-reported major tenets of the proposed overhaul, including using the “clear and convincing” standard as the threshold for punishing students, rather than the Obama-pushed “preponderance of evidence” standard. The latter says students should be punished if it seems “more likely than not” they committed a crime, or “a feather more” than 50 percent likely.
The new regs would also reportedly change the Obama definition of “sexual harassment.” The Obama definition was “unwelcome conduct of a sexual nature,” including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” That could easily encompass flirting and expressing romantic interest. Instead, the Trump administration would use the Supreme Court definition of “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”
The rules also maintain Ms. DeVos’s year-old policy of using mediation to reach informal resolutions, and would add the ability for victims and their accused perpetrators to request evidence from each other and to cross-examine each other. The rules also allow the complainant and the accused to have access to any evidence obtained during the investigation, even if there are no plans to use it to prove the conduct occurred. … The regulations go to great lengths to require impartiality in investigations. They call on schools to conduct objective investigations and provide ‘prompt and equitable’ resolutions.
Last year’s YouGov poll found 69 percent of Americans think rape charges should be handled by police and criminal courts, but a 1972 law and Supreme Court precedent require colleges to be a party to accusations of sexual crimes among college students. That’s under the convoluted theory that leaving such matters to criminal courts allows for sexual discrimination that harms education access.
A License to Falsely Accuse Men
A pattern of bias against men has been so persistent in the litany of Title IX outrages it suggests a law ostensibly passed to protect women has tipped into license for active discrimination against men rather than the sexual equality Americans were promised. The new USDOE regulations will thus, for the first time, decree that “just as an institution’s treatment of a complainant could constitute sex discrimination, so would the treatment of the accused,” the Times reports.
While The New York Times attributes concerns about the current campus situation to “men’s rights groups,” that would be news to mothers across the country who have campaigned for sons they say were wrongfully accused of rape by female classmates with an ax to grind. In reality, “[t]he Obama guidelines have produced a system of adjudication so absurd and unfair that victim and perpetrator can be determined by which party to a drunken hookup files with the administration first,” writes Inez Feltscher at the Washington Examiner.
This spring, for example, a judge in Rhode Island said anti-male discrimination was the only explanation for expelling a male student from college after his former girlfriend falsely alleged he had raped her. She made the accusation a year after the alleged rape, and offered no supporting evidence, according to Ashe Schow’s reporting based on court documents and interviews. The accused student was not informed of the charges against him, nor to call witnesses who offered eyewitness testimony contradicting the rape story, nor to have legal counsel.
In another case from this spring, “A Syracuse University conduct board determined that two-thirds of a female accuser’s accusations against a male student were unfounded, yet allowed her to change her account of the third accusation, and indefinitely suspended the male student,” Schow reported. In a particularly egregious case from last summer, a woman appears to have accused a man of rape after a consensual hookup in revenge for the man subsequently showing interest in other women.
Long-Coming Regulatory Rollback
The U.S. Department of Education’s Office of Civil Rights decided in 1997 that sexual harassment would count as sex discrimination that it might investigate and prosecute colleges for under Title IX. A string of Title IX-related Supreme Court and other high-profile cases then came out in the 1990s, but the department hasn’t until now applied that controlling precedent to its Title IX regulations, even under former Republican presidential administrations.
“The longstanding department approach to sexual harassment has never taken seriously the text that Congress gave us and the Supreme Court interpretation,” the Trump official told The Federalist. “The Obama administration made that worse.”
After USDOE indicated last year it would revisit Title IX regulations, several dozen colleges and universities announced they would ignore the department’s changes and continue applying the Obama rules. These “resisters” included Yale and Stanford universities, the University of Wisconsin-Madison, the University of Michigan, and Johns Hopkins. A survey from a consultant group found three-quarters of 100 responding university officials saying they would ignore the Trump regulation changes.
Thus the administration plans to actively enforce its new rules once they are finalized, the Trump official said: “We’re not just going to give schools guidance, we’re going to say ‘Here’s what you’re legally required to do.’ If a student or a faculty member or advocacy group thinks a school did not comply with the department’s requirements, they can file a complaint with OCR” and it will investigate. Because the new regulations rely on actual law and court precedent, rather than politicized desires untethered from legal authority, USDOE has a stronger hand to enforce them, the official said.
Let’s Get to the Actual Campus Rape Discussion
Eighty-three percent of respondents to the 2017 YouGov poll cited above think sexual assault on campuses is a real problem. It certainly is. The whole Title IX discussion is often framed in a way that shields open discussion of what the problem actually is and what’s leading to it. Only by discovering the truth about these things can we get to a place where fewer men and women are assaulted or wrongfully punished due to false accusations.
Title IX only kicks in after something terrible has happened. Far more important, of course, it would be to prevent terrible things from happening in the first place. Prevention is far better than cleaning up the aftermath. But because the truth about what’s happening on college campuses contradicts ideological tenets such as that we should view all men as potential rapists and “believe all women,” and that hookup culture does not endanger people’s mental and physical health, instead people who believe these things blame-shift to government regulations and campus tribunals.
I believe women when they say that the sexual environment on campus is hostile to them. The language they are currently given to express this deep pain is that of sexual assault. But that language does not fit most of the interactions here, which often begin and conclude as fully consensual encounters. They’re as fully consensual as drunken interactions can be, to be sure, but these women are adults and they have chosen both to get drunk and to have sex while intoxicated.
There are no laws against irresponsible behavior like that, nor should there be. This kind of behavior deserves condemnation, but calling it rape does an injustice to people who are forced into sex by assailants. That’s a different thing, and it deserves a different word.
Later, after she sobers up, the woman often realizes it’s all been a lie. She’s deeply hurt. That encounter was not what she wanted or deserved out of sex. The only word she has for it is rape. The man was definitely using her. But he often did it with at least her permission, and often the woman was using him right back. Is this rape? Is it sexual assault? Should it be brought into courts for lifelong legal penalties? Or should instead our culture stop lying to young people that drunken casual sex is one great party with no possibility of a devastating hangover?