How to End a Campus Injustice With the Stroke of a Pen
With his legislative agenda in trouble, President Trump could do a lot of good by using his executive power to reverse an egregious example of the Obama administration’s bureaucratic tyranny. I refer to the 2011 command by the Education Department’s Office for Civil Rights, and subsequent orders, forcing thousands of schools to take an aggressive role in the investigation and punishment of alleged sex crimes on college campuses.
Under threat of losing federal funds, almost all schools have willingly complied with a procedural regime that effectively presumes the guilt of every accused student, 99% of whom are male. These procedures include a virtual ban on cross-examination of accusers, a rushed process making it hard for an accused student to prepare a defense, and a mandate that those found innocent be subjected to appeals by accusers—a form of double jeopardy. The OCR also demands that schools judge guilt on the “preponderance of the evidence,” not the more rigorous “clear and convincing evidence” standard that was often used before, or the “beyond a reasonable doubt” standard that prevails in criminal cases.
Many universities have adopted other rules that compound the unfairness OCR explicitly demands. These rules redefine rape and sexual assault so broadly as to include almost all alcohol-fueled sex and many other commonplace, consensual sexual practices. Administrators have empowered campus sex bureaucrats—whose main mission is to please OCR—to decide accused students’ fates and “trained” them to view accused males as almost always guilty. Lawyers for the accused are barred from speaking in campus proceedings. The accused are often denied the right to see specific allegations or evidence against them.
OCR-mandated procedures have largely demolished due-process protections for many innocent (as well as guilty) accused males. Hundreds if not thousands have been falsely branded as rapists and expelled or suspended, with life-changing consequences.
So far Mr. Trump and Education Secretary Betsy DeVos have done nothing to limit the damage to justice and fairness from the Obama-era policy. The longer the status quo continues, the harder it will be to dislodge. Mr. Trump and Mrs. DeVos should require that schools either provide due process to accused students or leave alleged sex crimes to law enforcement.
The easiest and most obvious step toward reforming this wrongheaded system would be to revoke the OCR mandates. They came in the form of “guidance” for interpreting Title IX’s ban on sex discrimination, not as a formal, legally binding regulation. That means they could be revoked by the stroke of a pen.
But that step alone will not suffice. Nor can the courts undo much of the damage, although they have ruled in favor of many of the more than 100 accused males who have sued their schools. Guilt-presuming rules will remain in force at most federally funded colleges and universities unless the Trump administration requires them to respect due process, as well as the Title IX rights of both sexesto be free from sex discrimination.
Specifically, the administration should undertake the kind of rule-making its predecessor avoided by issuing guidance. It should gather evidence showing that many schools have systematically discriminated against accused students, which violates Title IX because those students are overwhelmingly male. And it should require universities that choose to adjudicate alleged sex crimes to adopt rules that protect the rights of accused students as well as accusers.
Those rules should, at a minimum, include rights to notice of the allegations and evidence, adequate time to prepare a defense, a fair hearing before an impartial panel, instructions that panelists presume accused students innocent until proven guilty, legal representation in campus proceedings, cross-examination (by a lawyer or other advocate) of all witnesses including the accuser, and a meaningful appeal of any adverse finding.
While such forceful regulatory action may at first blush make conservatives uneasy, it is the only way to counteract the vast damage done by the previous administration on this issue.
Sexual assault is a grave crime. Alleged victims should be treated with great kindness and respect, and violent criminals brought to justice according to the law. But there is no evidence that OCR’s commands have reduced the number of sexual assaults. By steering real victims away from police, OCR might well have kept some dangerous rapists out of prison, where they belong.
Mr. Taylor is coauthor with K.C. Johnson of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter Books 2017).