Why the Unfair Sex Tribunals of Title IX Are Losing Ground

In a reproof to Obama-era guidance on campus sex hearings, Education Secretary, Betsy DeVos issued interim Title IX guidance fair to the accused as well as the accusers. This brought a storm of abuse from the founders of the kangaroo court system, favored by the Obama team.

The lawsuits against the interim guidance issued by DeVos appear to have stalled. So on June 27, a coalition of accusers’ rights organizations invoked an obscure law, the Data Quality Act, to demand “corrections” in the September 2017 guidance issued by DeVos. The effort, which smacks of desperation, doesn’t seem likely to yield a victory for the groups, but that’s probably not the goal—as a fundraiser and publicity effort, the letter probably will serve its purposes. 

The accusers’ rights groups claim that the interim guidance falls short factually in six respects, reproduced below: 

  • “Many schools [before the Prior Guidance] had traditionally employed a higher clear-and-convincing-evidence standard.” 
  • “[M]any schools [before the Prior Guidance] had previously followed procedures reserving appeal for accused students.” 
  • “As a result [of the Prior Guidance], many schools have established procedures for resolving allegations that lack the most basic elements of fairness and due process.” 
  • “As a result [of the Prior Guidance], many schools have established procedures for resolving allegations that … are overwhelmingly stacked against the accused.” 
  • The Prior Guidance “led to the deprivation of rights for many students–both accused students denied fair process and victims denied an adequate resolution of their complaints.” 
  • The Prior Guidance “has not succeeded … in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires.” 

The groups’ objections fall into two categories. First, they claim that the interim guidance inappropriately uses the word “many,” in large part because a reader of the guidance would assume it was discussing the sexual misconduct policies of not merely the nation’s roughly 5300 colleges and universities, but also its approximately 98,000 K-12 schools. In this Amelia Bedelia-like formulation, the accusers’ rights organizations are pretending to interpret the sections of the guidance discussing sexual assault adjudications as discussions of Title IX tribunals in kindergarten. No one can take their rhetoric seriously. 

Second, the accusers’ rights group dispute the guidance’s claims about the unfairness of post-Dear Colleague letter practices. They cite for this assertion an ad hoc survey by one of the Senate’s leading foes of campus due process, Claire McCaskill, an article in Humanity and Society examining procedures in Maryland, and a Ph.D. dissertation examining policies in North Carolina. Strikingly absent from this list: articles from law professors such as Tamara Rice Lave (cross-examination), Ben Trachtenberg (race), and Aya Gruber (ideological bias) exposing multiple elements of unfairness in Title IX tribunals. 

Related: Fire Survey: Students Want Due Process for the Accused

In place of these obvious signs of unfairness, the accusers’ rights groups cite claims that in Maryland, some colleges give to accused students but not to the accuser the “right to receive written notice of the charges.” Yet it’s the accuser who made the charges in the first place—presumably, she or he knows what s/he said or wrote to campus authorities. Another example, from the McCaskill “survey”: “82% of schools allow alleged perpetrators to challenge hearing members regarding impartiality or conflicts of interest, while only 78% provide the same right to survivors.” Apart from the odd wording (how have the accusers’ rights groups decided that all complaining students are “survivors”?), it’s striking that the best the letter could do to suggest a bias in favor of the accused was a statistically insignificant gap from an ad hoc “survey” on a comparatively minor due process point. 

Perhaps the letter’s only candid sentence was a claim that the interim guidance “fails to define what it means when it refers to ‘the most basic elements of fairness and due process’ or what it means to have procedures be ‘overwhelmingly stacked against the accused.’” We know how the accusers’ rights groups define “fairness”—the Obama-era standards that called for lower standards of proof, allowed double-jeopardy principles, strongly discouraged cross-examination under the format used by most schools, and mandated guilt-presuming training materials that schools don’t provide to accused students before their hearings. It seems as if they’re outraged that DeVos doesn’t share this definition of “fairness,” which motivated the letter. 

I suspect there’s one other motivation here: establishing #Resistance credibility boosts fundraising. One of the signatory groups, SurvJustice, just advertised for a new executive director, with a salary of between $85,000 and $100,000. By contrast, the major group advocating on behalf of accused students, FACE, is a volunteer organization. 

KC Johnson

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

One thought on “Why the Unfair Sex Tribunals of Title IX Are Losing Ground”

  1. Prof. Johnson, we hope you’re right.
    We hope the Title IX Inquisition is losing ground. We hope that the Council of Grand Inquisitors (Dean Torquemada and all the rest) are falling back, losing steam, scrambling with increasing desperation after every tactical defeat that drains $$’s from the university coffers. We’d like to think these incremental rejections of the Rape Culture/Campus Rape Epidemic idiocy is an inevitability, as reason – or so we would hope — triumphs.

    And perhaps the quibbling, re: the Data Quality Act is, indeed, a sign of such strategic retrenchment in the face of inevitable loss.

    But I don’t trust it.

    The infantilization of women required & vehemently sold by 4th Wave Feminism (women as perpetual victim….unable to resist the predatory power of the male gaze…unable to make decisions in their own best interest because, Misogynistic Patriarchs) equally requires — as Eric Hoffer pointed out — the demonization of men. And in such a black & white world of Survivors and Devils, there is no compromise or surrender. No self-righteous Progressive Title IX Admin, will ever admit that, in fact, there is no Rape Culture on Campus. No one will ever say that the “1 in 5” victim stat is pure fabrication; nor will they concede that the definition of sexual assault as anything which is unwanted is simply flat out insane. They can’t. Their very existence (as a well-funded entity…a long-term career path) depends entirely upon the recognition that the female gender MUST be protected (the first duty is “to believe) from the male gender which will otherwise rape & pillage perpetually. (It’s our nature to be irredeemable beasts!)

    So despite the recent 6-figure settlement required of USC (being paid to yet another accused “John Doe”), the Title IX Establishment simply doubles-down. Why? Because they are True Believers; they KNOW they’re right. (After all, Obama said so!) How could they possibly be wrong??

    Every outcome they see which is gender-imbalanced, every complaint about a male/female encounter which is not ‘affirmatively consented’ , all that is proof, to those who are ‘woke’ that misogyny & bias is at play….that beasts & M-F’s (see the USC settlement:) still rule the field….that women are still being objectified….that females can only ever be victims until men are forced & reprogrammed to “lean back”. And so they fight on!

    But still there’s hope.
    And maybe Prof. Johnson is right.
    Maybe we really are beginning to wake-up.
    I hope so.

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