Tag Archives: Betsy DeVos

Jerry Brown Vetoes Unfair State Bill on Campus Sexual Misconduct Rules

A pleasant surprise: Governor Jerry Brown has vetoed the California bill designed to protect the unfair procedures of the Obama Education Department’s guidance on how to deal with sexual misconduct on campus. His decision was explicitly based on due-process grounds. The Obama-era policies discouraged cross-examination, suggested that accusers (but not the accused) be allowed to appeal decisions and lowered the burden of proof of misconduct to “a preponderance of evidence” — slightly over 50% or 50.0001% likelihood of guilt.

Brown wrote in a statement:

“Thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault—well-intentioned as they are—have also unintentionally resulted in some colleges’ failure to uphold due process for accused students. Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.”

Betsy DeVos, the new secretary of education, is revising the Obama guidance, which was never subject to public notice and comment as new rules are required to be. The Obama education department argued that the new rule was a clarification of existing rules, though many of the recommendations were clearly new.

Critics Slam DeVos for Being Fair

Nearly 60 Democratic legislators tweeted criticism of Education Secretary Betsy Devos’ speech, which advocated a fairer approach and more respect for due process in campus Title IX tribunals. The preferred adjectives included “terrible,” “despicable,” “insulting, “perverse,” “appalling,” “disgraceful,” “shameful,” and “dangerous. No congressional Democrat, in any way, praised her remarks, which insisted on the rights of both accusers and accused.

Most of this commentary showed little or no awareness of what goes on in these hearings and how unfair many are to the males involved. Former Vice President Joe Biden went even further than most, telling accusers’ rights activists that they needed to continue to speak up, offering an “analogy” to critics of the “Nazis marching” in Virginia: “When we’re silent, we give a rationale, an excuse to people who are the very people we’ve been fighting all along.”

Twenty-nine Democratic or Democratic-affiliated senators (three-fifths of the Senate Democratic caucus) followed this activity with a letter to DeVos. The senators demanded that the Secretary keep in place the Dear Colleague letter, the symbol of Obama-era unfairness, even as their document didn’t mention the presumption of innocence, due process, or fairness. Their letter’s only mention of “justice” came in a section that spoke of “survivors [emphasis added] in obtaining justice.” It seems, alas, that even-handed justice is no longer a goal for congressional Democrats.

Accusers’ Rights Activists

If Democratic legislators chose vitriolic, over-the-top rhetoric to respond to DeVos, the preferred approach of the accusers’ rights movement was an affirmative attempt to mislead. The pattern began during DeVos’ speech itself; as the Secretary recounted cases of students being denied due process, Know Your IX co-founder Alexandra Brodksy tweeted that these abuses of fairness all somehow violated the Dear Colleague letter. It should go without saying that in the 180 or so due process lawsuits, Know Your IX has never filed an amicus brief making such a point. That’s no surprise coming from an organization whose other co-founder, Dana Bolger, had celebrated perhaps the single most unjust of any of the post-Dear Colleague campus cases, the Amherst one.

In an article saying that DeVos’ speech was “profoundly stupid,” Know Your IX Sejal Singh fantastically claimed that the Dear Colleague letter “affords students accused of sexual violence with more procedural rights than . . . the Due Process Clause of the Constitution otherwise provides students in campus discipline.” (Her citations for this remarkable assertion were two pieces by Know Your IX’s Brodsky.) Singh’s op-ed would have come as news to judges in the recent Penn State and Miami decisions, both of whom cited the Due Process Clause in cases dealing with a refusal to provide exculpatory evidence to the tribunal (not mentioned in the Dear Colleague letter at all) and refusal to allow cross-examination (discouraged by the Dear Colleague letter). It’s hard to know whether Singh and her Know Your IX colleagues are being deliberately misleading, or are simply ignorant of an issue with which they have been involved for several years.

Higher-Ed Status Quo

The third group of DeVos critics came from within the higher-ed establishment itself. Wesleyan president Michael Roth, for instance, tweeted, “We must #StopDeVos from pushing us back 2 an era when assault and harassment were acceptable parts of campus culture.” (He was responding, it’s worth noting, to a speech organized around a theme that due process served all sides.) Roth recalled for the New York Times “‘the times when men, with impunity, would throw their weight around,’ sexually harassing and assaulting women . . . ‘Changing that culture over the last decade, as the Obama administration tried to do, was an enormous contribution.’” The Obama guidance was issued four years after Roth took charge at Wesleyan. There’s no evidence he informed prospective parents of the extraordinarily dangerous situation that purportedly existed on his campus between 2007 and 2011.

Then there was a Chronicle piece (celebrated by accusers’ rights activists) by higher-ed lawyer Scott Schneider, former associate general counsel at Tulane who provides what he describes as “expert witness testimony on matters dealing with institutional response to allegations of sexual misconduct and designs and delivers training programs on a host of education issues, including Title IX compliance obligations.”

As Scott Greenfield has pointed out, Schneider left the erroneous impression that 1997 OCR guidance and the Supreme Court adopted the same “definition” of sexual harassment, for a period of “almost 20 years.” The 1997 OCR guidance speaks of sexual harassment that is “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program.” By contrast, the Supreme Court, in 1999, used the following formulation: “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience.” (The emphasis in each instance is added to show the differences between the two “definitions,” with the Supreme Court’s notably tighter than the OCR guidance Schneider elected to quote.) Perhaps Schneider simply assumed (likely correctly) that most Chronicle readers wouldn’t bother checking on the precise wording of Davis to note the differences between it and the 1997 OCR guidance he quoted.

For the most part, Schneider’s approach to DeVos’ speech was to interpret the Secretary’s words divorced from the context of the six years since the Dear Colleague letter. After, for instance, quoting DeVos’ concerns that witnesses might not be cross-examined and evidence might not be presented to both parties, Schneider asserted, “In its 2014 ‘Questions and Answers on Title IX and Sexual Violence,’ the department’s Office for Civil Rights, or OCR, also noted that ‘in all cases, a school’s Title IX investigation must be adequate, reliable, impartial, and prompt, and include the opportunity for both parties to present witnesses and other evidence.’”

There have been dozens of lawsuits since the issuance of the Dear Colleague letter dealing with these themes. Moreover, the whole thrust of the single-investigator model is to eliminate any form of cross-examination and minimize the amount of evidence that an accused student sees. During her nearly four years running OCR, Catherine Lhamon ignored the lawsuits as the White House spoke positively of the single-investigator model. Lhamon refused to meet with groups advocating for accused students (SAVE and FACE); she initially refused (in writing) to even meet with FIRE. The Obama administration spent four years in one-sided publicity portraying the nation’s college campuses as awash in violent crime, with Lhamon publicly threatening to pull funds if they didn’t do enough. And it’s Schneider’s argument that pulling out a line OCR showed no interest in enforcing—while ignoring what OCR actually did during the Lhamon years—showed that DeVos had misstated the guidance?

Similarly, in a passage quoted by Greenfield, Schneider chastised DeVos for saying that “even lawyers” found Obama-era guidance “confusing” to navigate. The expert witness would have none of it: “In the event that there was any confusion about that guidance,” he reasoned, the 2014 “Questions and Answers” document provided the needed “straightforward” answers.

Consider just one sentence from the 46-page 2014 guidance: “Of course, a school should ensure that steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.” Is that sentence “confusing”—or, as Schneider claimed, “straightforward”? Given that multiple courts (not to mention myriad filings from lawyers on both sides of the issue) have come to dramatically differing conclusions on due process and Title IX tribunals, it does seem as if some lawyers—that is, federal judges—don’t consider the guidance to be “straightforward.”

But Schneider’s article served a purpose—not necessarily persuading people, but muddying the waters enough for defenders of the status quo to present a tenable claim that DeVos was wrong. After all, they can say, the Chronicle published it.

De Vos to End One-Sided Campus Sex Rulings

In the debate over campus due process, it would be difficult to overstate the significance of Education Secretary Betsy DeVos’ George Mason speech. No comparable address occurred during the Obama years—former Education Secretary Arne Duncan largely deferred on the issue to Russlynn Ali and Catherine Lhamon, who ran the Office for Civil Rights (OCR) during the Obama years. Ali and Lhamon spent years evading the obvious question: why was it necessary, in April 2011, to reinterpret Title IX to allow the federal government to dictate campus sexual assault procedures? When Lhamon finally provided a written response to that question, in 2016, her purpose seemed to be more to mislead than explain. Indeed, the fact that DeVos even met with students who said they had been wrongly accused of sexual assault—something that Ali and Lhamon refused to do—was a path-breaking decision.

In the aftermath of the DeVos speech, four themes are worth considering.

Culture of Due Process

Before the speech, an astute observer of campus sexual assault predicted to me that the DeVos address would function as a Rorschach test, and he proved correct. The Education Secretary repeatedly, and forcefully, denounced sexual assault. She also discussed due process, including in some of these passages:

  • “One person denied due process is one too many.”
  • “Justice demands humility, wisdom, and prudence. It requires a serious pursuit of truth.”
  • “No student should be forced to sue their way to due process.”
  • “Any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination.”
  • “Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.”

In virtually any other context of American life (with, perhaps, the exception of some national security debates), these comments would be seen as embodying fundamental American principles—which, of course, they did. Yet DeVos’ comments generated furious condemnation from Democratic politicians and liberal activists (David French summarizes, and critiques, some of the more strident of these claims.) The left-wing commentator Amy Siskind deemed DeVos’ speech a signal toward authoritarianism, before proclaiming, “STFU with your hackneyed due process talking point.” Stanford Law professor Michele Dauber described the speech as “one long dark dog whistle for men’s rights activists.” Rob Ranco, a Texas civil rights lawyer, said after the speech that he would “be OK if Betsy DeVos was sexually assaulted.”

These statements—again—came in response to a speech in which the Education Secretary repeatedly condemned sexual assault and repeatedly expressed her desire to see colleges handle sexual assault allegations under the banner of Title IX.

Yet, it’s clear, her belief that due process is important in the Title IX context is now seen in many quarters as excusing rape—that a system that allows accused parties basic rights and protections is one that will somehow always yield a not guilty finding. This is an enormous, and deeply troubling, cultural change. But it’s also, unfortunately, the logical outgrowth of the Obama administration’s approach to this issue. Six years of an implicit (and occasionally explicit) message that due process was an obstacle, rather than a necessary prerequisite, to campus justice has brought us to this point.

Democrats and the Accusers’ Rights Movement

Neither of our two major parties has a good record on civil liberties and due process matters, but over the past 50 years, the Democrats traditionally have been the more supportive party on these questions. On campus due process, however, the Democrats have become the accusers’ rights party, with no daylight between key party members and the accusers’ rights movement.

Former Vice President Joe Biden, for instance, spent the day after the DeVos speech appearing at an event hosted by Know Your IX, probably the most extreme of the major accusers’ rights organizations. Bernie Sanders, who in his 2016 presidential bid had (correctly) said law enforcement should handle campus violent crime, realized that he needed to reverse himself in the new party climate, and immediately condemned DeVos’ speech.

California Senator Kamala Harris, another prospective 2020 presidential candidate, came out against a presumption of innocence in campus sexual assault cases. In a tweet responding to a news report indicating DeVos’ skepticism about Obama-era guidelines, Harris thundered, “Survivors of sexual assault deserve to be believed, not blamed.” The statement recalled the notorious remarks of Dartmouth Title IX official Amanda Childress: “Why could we not expel a student based on an allegation?” That a U.S. senator and former state attorney general is now as extreme as an obscure campus administrator gives a sense of how dramatically the accusers’ rights perspective, once a fringe, has consumed the Democratic Party.

The two most significant Democratic statements, however, came from Washington Senator Patty Murray. The first—which deserves far more attention than it has received—came the day before the DeVos speech. In a press release, the Washington senator maintained, “The standard of proof guidance provided in the [Dear Colleague] letter has led to more women and men coming forward about their sexual violence experiences.” This was the clearest statement I’ve seen from a defender of the Obama-era policies that reporting will increase if colleges rig the procedures to increase the chances of a guilty finding. Much like Harris’ statement, this mindset presumes guilt.

The day after DeVos’ speech, Murray wrote the Education Secretary to demand that the Dear Colleague letter should be retained. Absent from her missive: any reference to “due process,” “fairness,” or “presumption of innocence.” In a world where every allegation was clearly true, the perspective of Murray and many of her fellow Democrats—in favor of a campus process designed to vindicate all accusers’ allegation might make sense. In the world in which we live, the party’s abandonment of civil liberties for college students is outrageous.

It’s also worth noting that while Democratic legislators might have abandoned due process, many prominent liberals and feminists have not. Harvard Law professors Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet, and Nancy Gertner have been tireless on this issue; Suk Gersen’s co-authored law review article (with Jacob Gersen) and her New Yorker columns on Title IX and due process are must-reads. Laura Kipnis’ book penetrated into the public consciousness in a way that no other work on this topic has done. Lara Bazelon has written several influential commentaries. Emily Yoffe’s research-based journalism at Slate and now the Atlantic provides a reminder that a left-of-center worldview doesn’t require accepting junk science or the infantilization of women. And, as I’ve noted previously, while I’ve been very critical of the Obama-era policies, I was nonetheless an Obama donor and voter in both 2008 and 2012.

The Rationales of Obama Officials

The clearest explanation for Obama’s policies from either of his two OCR heads came in this 2014 exchange between Catherine Lhamon and Tennessee Senator Lamar Alexander. Lhamon preposterously claimed that by confirming her, the Senate gave her the authority to “explain” Title IX—including, it seems, to the Senate itself, and by the threat of losing federal funds to all colleges and universities.

The response of high-level Obama Education Department officials to the DeVos address perhaps explains their previous public reticence. Lhamon seemed to express opposition to any executive branch office or agency using the regulatory process, as opposed to (her preference) issuing unilateral guidance. Ali wildly asserted that DeVos’ address would “take us back to a system that disempowers and silences survivors of sexual violence.” Weakening due process as the 2011 guidance did, Ali continued, amounted to “common sense protections,” and removing these provisions would create “an environment that is hostile to student survivors of sexual violence.”

The former boss of Ali and Lhamon, Education Secretary Arne Duncan, bizarrely suggested that DeVos’ speech meant that she was “choosing politics over students.” As Duncan surely knows, the politics of this issue move in one direction and one direction only—against due process for accused students. There was zero political benefit to DeVos’ remarks—she did the right thing morally and ethically, but took a political risk.

How Campus Tribunals Operate

A final point: I’ve noticed even in some columns supportive of DeVos’ efforts an acceptance of one vital element of the Obama narrative: that some action was necessary in 2011 because colleges were indifferent to the victims in their midst. At one level, this is true—doubtless, colleges were indifferent in the 1970s or 1980s when people challenged whether “date rape” could even occur. And there were some key cases involving athletes in the 2000s where colleges clearly looked to sweep things under the rug.

But, more generally, the claim that the typical college campus in the years immediately before the Obama guidance routinely mistreated sexual assault accusers is a hard argument to credit. We actually have a good case study of this: the Duke lacrosse case. Here was a claim that was as false as a rape claim possibly could be. Yet 88 Duke professors signed a public document affirming that something “happened” to accuser Crystal Mangum, and promising to continue their crusade “regardless of the results of the police investigation.” The Duke administration, behind the scenes, seemed equally willing to presume guilt. Could such a campus leadership—whose basic ideological culture on gender issues was comparable to that of most elite schools in the decade before the 2011 Dear Colleague letter—was celebrating the truth of Crystal Mangum but doubting the veracity of actual student victims?

Nor were pre-Obama Duke procedures somehow unfair to the accuser. Quite the reverse: after the lacrosse case, the university revised its sexual assault procedures to make it far more likely an accused student would be found guilty, while dramatically expanding the definition of what constituted sexual assault on the Duke campus. The new definition stated as a “guiding principle” a reminder that “real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” That is two years before the Obama administration acted, a Duke student could be found guilty of sexual assault if his accuser “perceived” him as more powerful, thereby creating “unintentional” coercion—even if he did absolutely nothing wrong.

Again, does this sound like an environment that was indifferent to campus victims?

Trying for Fairer Treatment of Accused Students in Georgia

While Education Secretary Betsy DeVos considers reforming the Title IX policies she inherited from her predecessor, states have acted on their own. On the one side, some blue states moved beyond Obama’s guilt-presuming approach. Four states (California, New York, Illinois, and Connecticut) have adopted “affirmative consent” laws that define sexual assault differently for college students than in the state’s own criminal law. A fifth state, Minnesota, has enacted a law requiring training that seems designed to tilt disciplinary panels to return guilty findings.

On the other side, a handful of red states have tried, despite federal pressure, to create a fairer system. North Carolina and North Dakota enacted laws requiring schools to allow accused students to have lawyers. (UNC then moved to weaken the provision by changing its policies to limit lawyers’ roles.) And now Georgia’s Board of Regents has made a move.

Inside Higher Ed reports that Georgia has adopted a new statewide (for public institutions) sexual assault policy, in which investigations will be more centralized. According to talking points that Inside Higher Ed obtained, the new policy “establishes increased oversight of investigations by the system office and provides a consistent approach for handling all conduct and sexual-misconduct matters through the same procedures. Campus officials will steer away from any semblance of a criminal proceeding.”

Paraphrasing sentiments from various accusers’ rights activists, the article, by Jeremy Bauer-Wolf, summarizes their belief that the new policy “would make it more difficult for survivors to get justice on their own campuses.” (How this would be, remains unclear.) And the Inside Higher Ed sub-headline noted concerns with accusers’ rights groups about how the new policy contradicted federal law. (How, again, is unclear, since Obama-era “guidance” isn’t law, and the only issue with this guidance that Bauer-Wolf mentions is the new policy’s not including a promise to complete all adjudications within 60 days—which is a suggestion, not a demand, from the 2011 and 2014 guidance.) The opening of the piece, moreover, now includes a major factual correction.

More interesting, however, is the framing of the article. Bauer-Wolf’s piece leaves the strong impression that the new policy resulted from the Board’s desire to appease Georgia State Representative Earl Ehrhart. Earhart has been one of the few politicians to publicly criticize how the Obama-era Office for Civil Rights handled sexual assault matters, and introduced a bill this year designed to require school employees, when they received word of a student who claimed to have been the victim of a felony offense, to report the issue to the police.

It’s certainly plausible that the Regents acted to stay on the good side of a powerful legislator—though it appears as if most of Bauer-Wolf’s sources making this claim are accusers’ rights activists, and it’s not clear why the accusers’ rights movement would have particular insight into the inner workings of the Georgia Regents.

Unmentioned, moreover, by Bauer-Wolf is another obvious possible motive for the Regents’ action: due process lawsuits. Georgia Tech faced—and settled—two such lawsuits last year. One settlement occurred on the eve of the court hearing; the other came after the university had prevailed in a TRO hearing, albeit with some strong words against Georgia Tech policy from the judge. Ashe Schow outlined the troubling facts from one of the cases. The second case, if anything, raises even more concerns: despite a reported six-figure payout by the state, 35 of the filings in the case are sealed (after a motion from the accuser) with no certainty on when (or even if) the material that prompted the university to spend taxpayers’ dollars on a settlement will see the light of day.

Nor, it seems, were these two cases non-representative. An investigation by the Atlanta Journal-Constitution found that at Georgia Tech, accused students “were almost always found responsible.” Looking at state universities’ overall system, the former DeKalb (Atlanta) County District Attorney observed, “It’s a sham. These young men are being denied very basic protections so that the schools can score political points.” On the taxpayers’ dime, one of the state’s two leading public universities had established what bordered on a rigged system.

How could the Regents, under those circumstances, not have acted?

DeVos Attacked for Civil Liberties Donations

Betsy DeVos, who was nominated to be the Education Secretary, has been attacked because she and her husband made donations to a civil-liberties group, the Foundation for Individual Rights in Education. FIRE is “a nonpartisan organization that defends free speech, religious liberty, and due process on college campuses.”

The DeVos family donations drew criticism from Senator Bob Casey (D-Pa.). He objects to FIRE’s criticism of mandates that the Obama administration imposed on America’s colleges and schools, micromanaging how they handle allegations of sexual harassment and assault. FIRE argues that the administration’s mandates undermine due process on campus.

Many law professors from across the political spectrum have argued that these Obama administration mandates were illegal since they imposed new obligations on schools without going through the notice and comment process mandated by the Administrative Procedure Act.

A May 16, 2016, letter from 21 prominent law professors says that “free speech and due process on campus are now imperiled” by the Obama administration’s mandates, which ignore “judicial precedent and Administrative Procedure Act requirements.”  The 21 signatories to that letter include former federal appellate judge Michael McConnell, and Harvard law professors such as Elizabeth Bartholet (who taught sex discrimination law for many years), Richard Parker, and Charles Donahue.

Ignoring such legal commentary, Senator Casey, joined by Senator Patty Murray, have claimed that “the Obama administration’s guidance to colleges and universities in 2011 ‘clarified longstanding policy at the Office of Civil Rights, dating back to at least 1995 and explicitly supported by the George W. Bush administration.’”

That claim of continuity is quite wrong: the 2011 guidance imposed new rules on colleges, and abolished longstanding protections for accused faculty and students on many campuses, as I previously discussed at this link. The Obama administration’s 2014 sexual harassment guidance also imposed new rules that conflicted with Supreme Court precedent.

Perhaps the most glaring way the Obama administration departed from past agency practice was in forcing colleges to investigate even off-campus conduct.

alleged to constitute sexual harassment or assault. That overreaching resulted in absurdities such as a Title IX investigation of Professor Laura Kipnis for an essay published off campus in the Chronicle of Higher Education, “Sexual Paranoia Strikes Academe”, which students nevertheless claimed constituted “sexual harassment.” (The students then accused Kipnis of “retaliation” when she took issue with their charges on twitter.  After an outcry from free speech advocates, charges were dismissed months later.).

The Obama administration ignored past OCR rulings authored by career lawyers and civil servants at OCR in forcing colleges to investigate off-campus conduct. Such “unexplained departures from” past administrative precedent are arbitrary and capricious, as the D.C. Circuit Court of Appeals noted in Ramaprakash v. FAA (2003). The Obama administration also ignored two federal appeals court rulings, and language in a Supreme Court decision, by demanding that colleges do so.

As the Office for Civil Rights noted during the Bush Administration when I worked there, “A University does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity of the recipient.

The Obama OCR’s contrary position is clearly at odds with court interpretations of Title IX as not applying off campus. For example, a federal appeals court rejected a lawsuit by a student over an off-campus rape in Roe v. St. Louis University, 746 F.3d 874, 884 (8th Cir. 2014), rejecting arguments that the rape had on-campus effects and created a sexually hostile environment.

This court decision rejecting liability for off-campus conduct paved no new ground: another federal appeals court ruling long predating the Obama administration’s guidance made the same point, rejecting a Title IX lawsuit against a university by a student assaulted by her instructor at his off-campus dental office. (See Lam v. Curators of University of Missouri (1997)). Under the Bush administration, unlike under Obama, the Office for Civil Rights properly followed such court rulings.

The Obama administration should not have committed these unexplained departures from past administrative precedent, much less ignored federal court rulings.