PRO: LET’S RESTORE CONSTITUTIONAL PROTECTIONS ON US COLLEGE CAMPUSES
By WILLIAM J. WATKINS, JR.
For the radicals inhabiting the bureaucracy of American higher education, U.S. Secretary of Education Betsy DeVos is a threat.
For years, these “educrats” have built echo-chambers where speech codes, “safe spaces” and inquisitions have replaced free speech and academic freedom.
DeVos aims to change this. To the dismay of her critics, she already has withdrawn some of the most controversial Obama-era guidelines that essentially presumed the guilt of any male charged with sexual harassment.
Any day now her department is expected to release new guidelines for addressing sexual misconduct under Title IX of the Education Amendments of 1972. The tenor of the proposals telegraphed so far would be a great improvement compared to prior policy.
But so long as Title IX remains on the books, DeVos’ reforms will not be lasting. So entrenched is the tomfoolery on college campuses that no lasting change is possible so long as Title IX exists.
Enacted in 1972, Title IX is a federal statute that prohibits discrimination on the basis of sex in any federally funded education program or activity.
Under the Obama administration, Title IX became a tool not to achieve participation-parity, but to sanction kangaroo courts and silence certain viewpoints.
In 2011, his administration promulgated Title IX guidance to eliminate “hostile environments,” defining sexual harassment as “any unwelcome conduct of a sexual nature.” Schools were instructed to use a “preponderance of the evidence” standard in adjudicating a complaint, rather than higher standards such as “clear and convincing” evidence or beyond a reasonable doubt. In many instances, the accuser could not be cross examined and the accused had little time to prepare a defense.
Educrats have enacted speech codes and anti-harassment policies under the claim that Title IX requires them.
These codes go far beyond matters of sex discrimination. They prohibit such things as “cultural intolerance” and “bias.” These terms are broadly defined to include speech that might be offensive or demeaning to a student’s race, gender preference or culture.
Despite the squawks of her opponents, DeVos does not go far enough in efforts to restore sanity to campus. She should lead a charge aimed at repealing — not simply tinkering with — Title IX.
William J. Watkins, Jr., is a research fellow at the Independent Institute, Oakland, Calif., and author, most recently, of “Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.”
CON: ‘PREPONDERANCE OF EVIDENCE’ CLAUSE SHOULD REMAIN IN FORCE ON COLLEGE CAMPUSES
By Wayne Madsen
TRIBUNE NEWS SERVICE
Secretary of Education Betsy DeVos has been at the forefront of trying to roll back the federal law that prohibits gender discrimination in schools that receive public funds.
Known as Title IX of the Federal Education Act, the law includes a “preponderance of evidence” clause that allows colleges and universities to convene tribunals to handle sexual offense allegations on campus rather than pass them on to local authorities.
Title IX was enhanced by the 1990 Clery Act, signed by President George H. W. Bush and named after a Lehigh University freshman who was raped and murdered in her dormitory.
Under the act, college and university administrations are required to report all campus crimes to the authorities.
Nevertheless, only about a third of campus rapes and other assaults are reported by school authorities to the off-campus authorities.
And for the likes of Secretary DeVos, even this is an infringement on the rights of the accused assaulters.
Many colleges and universities rely on the preponderance of evidence clause to deal with cases of sexual assault on campus.
School administrators who adopted the Title IX clause, known as the “Obama Rule,” are resisting the Trump administration’s efforts to turn back the clock to an era when such cases, depending on the political influence and deep pockets of the parents of accused students, would see local district attorneys waiving all charges after receiving a phone call from a “connected” parent or his or her high-priced attorney.
DeVos calls the preponderance of evidence tribunals by universities and colleges “kangaroo courts.” However, in such cases, experienced external investigators are called in to help the school administration with assault cases. Under such rules, cases involving “regret sex” are usually dismissed.
States like California, Illinois and New York are codifying into state law the preponderance of evidence requirements of Title IX.
State “yes means yes” laws, which require adoption of Title IX’s provisions by schools receiving state funds, are butting up against DeVos’s new interpretation of Title IX, which can be described as “no might mean yes.”
The advocacy organization End Rape on Campus has challenged DeVos’s roll back of Title IX. It has accused DeVos and the Trump administration of “tipping the scales” to favor “rapists and perpetrators.” In the #MeToo era, these advocates for vulnerable students are correct.
A graduate of the University of Mississippi, Wayne Madsen is a progressive commentator whose writings have appeared in leading American and European newspapers.