On Title IX, Dems Move to Restore Obama-Era Unfairness

KC Johnson

Editor's Note: This article was originally published by RealClearEducation on April 9, 2021 and is crossposted here with permission.

On Tuesday, the Biden administration announced its intent to modify or replace the Title IX regulations adopted last year by former Education Secretary Betsy DeVos. Those regulations gave accused students a chance for fairer treatment in Title IX tribunals by ensuring the presumption of innocence, access to evidence the university gathered in the investigation, and adjudication through a hearing with cross-examination conducted by a lawyer or advocate for each of the parties.

In targeting the rights of college students accused of sexual assault, the Biden administration selected an appropriate anniversary. Fifteen years to the day of Biden’s Title IX move, Duke University’s Group of 88 released a public statement in response to a Durham, N.C., woman’s claim that three Duke lacrosse players had brutally raped her. Political commentator David French recently deemed the professors’ document “one of the worst public rushes to judgment in modern times.”

Biden’s move was unsurprising: During his time as vice president, he had championed a Title IX system that, as DeVos observed, too often subjected accused students to “kangaroo courts.” Despite a wave of appellate court rulings favorable to accused students, during the 2020 campaign Biden denounced DeVos’ efforts and promised a return to Obama-era policies.

In a conference call explaining the move, Suzanne Goldberg, acting head of the Education Department’s Office for Civil Rights, promised new procedures that were not only fair, equitable, and prompt (boilerplate language in this area of the law that the Obama administration also used to describe its one-sided policies) but also “cognizant of the sensitive issues that are often involved.” Thus, the Biden administration furnished in advance a highly subjective and amorphous criterion that college administrations can use to diminish accused students’ ability to meaningfully defend themselves.

Campus activist groups have consistently opposed what they claim is a “retraumatizing” process in which accusers face tough questions about their allegations. Goldberg herself, during her time as a Columbia law professor, maintained that an accused student would be just as well served through “questioning by a neutral college administrator” than by cross-examination from his own lawyer. In any case, the acting OCR head added, “Many scholars say that aggressive, adversarial questioning is more likely to distort reality than enable truth-telling.” Tell that to the Supreme Court, which has referred to cross-examination as the “greatest legal engine ever invented for the discovery of truth.”

Goldberg would have been quite at home at Duke 15 years ago. Amid a barrage of ethically improper statements from local District Attorney Mike Nifong, the Group of 88 took to the pages of the campus newspaper to assert that something “happened” to accuser Crystal Mangum. (Nothing, it turned out, had happened to her.) The Duke professors thanked protesters who, among other things, urged the castration of the lacrosse captains and blanketed the campus with “wanted” posters containing the student-athletes’ photographs.

The students’ ultimate exoneration prompted no reconsideration from the Group of 88. Nearly all signed onto another statement rejecting requests that they apologize. In words that could have come from the Biden officials on Tuesday’s call, this statement framed the lacrosse case -- an incident in which their own students were falsely accused -- as actually illustrating an “atmosphere that allows sexism, racism, and sexual violence to be so prevalent on campus.”

The Group of 88 serves as a reminder that the presumption of innocence has been in short supply on American college campuses for a while. The DeVos regulations provided a check against campus environments that effectively presumed guilt in Title IX cases. Just as the Group of 88 prioritized their crusade to revolutionize campus culture over their own students’ well-being, so too do Biden officials seem indifferent to the rights of accused students as they seek to vindicate the claims of those who describe themselves as survivors.

This hostility to due process does have one important exception: allegations against powerful Democratic officials. During the campaign, after former aide Tara Reade accused Biden himself of groping her, the Biden campaign cited “an obligation to rigorously vet those claims.” (So much for procedures “cognizant of the sensitive issues that are often involved.”) As House Speaker Nancy Pelosi reminded reporters, “There's also due process” in evaluating sexual assault allegations — at least when her party’s presidential nominee was the one being accused. This was the same Speaker Pelosi who had dismissed Betsy DeVos’ efforts to ensure due process for college students as “callous, cruel and dangerous.”

A similar dynamic unfolded in New York, where Gov. Andrew Cuomo, who backed a 2015 law that undermined protections for students accused of sexual misconduct, has faced multiple allegations of sexual harassment and assault. Like Biden, Cuomo has embraced aggressive tactics of the very type he deemed out of bounds for college students facing life-altering allegations. Also, like Biden, Cuomo has received support from key political allies in his effort. New York Assembly Speaker Carl Heastie, for instance, privately invoked the importance of “due process,” arguing that the Assembly needed to hear from people under oath. “They may have made false statements,” the speaker maintained.

That’s certainly possible. But a system in which powerful politicians receive the due process they actively seek to deny to accused college students is a fundamentally unfair one. As the Biden administration races toward reimposing a one-sided Title IX system, it might recall the Group of 88’s fate. History looks unkindly on those who willingly sacrifice the innocent in pursuit of an asserted greater good.

 KC Johnson is co-author, with Stuart Taylor Jr., of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

Image: The White House, Wikimedia Commons, Public Domain

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