Megyn Kelly is of the few journalists to have consistently raised concerns about the fairness of campus Title IX tribunals. She did so at Fox, bringing attention to the egregious case at Amherst College. And she did so last week at NBC, noting that while conditions once were unfairly tilted against the accuser, “the Obama administration overcorrected the problem, and swung the pendulum too far back over against the accused, completely eroding their due process rights.”
Kelly’s comments hardly should have been controversial. After all, every substantive change from the Dear Colleague letter (2011) and the 2014 guidance (standard of proof, double jeopardy principles, training, discouraging cross-examination, hastening the adjudication) increased the likelihood of a guilty finding. The President and Vice President both spoke publicly about the need for colleges to crack down on sexual assault; neither ever even hinted at the importance of due process. Nor did OCR head Catherine Lhamon in her public comments—though she did threaten to pull funding from any schools that didn’t do her bidding.
That the Obama-era OCR believed that colleges needed to adopt more accuser-friendly procedures is beyond dispute. The only dispute revolved around the wisdom of those policies.
That was before the intervention of former Education Secretary Arne Duncan. He could have ignored them. Duncan could have explained why his subordinates demanded guilt-tilting procedures. Instead, almost incredibly, he lashed out at Kelly, in sharply personal terms—accusing her of having “lied,” and calling her an outright “liar.” The administration, Duncan asserted, “didn’t just fight to protect their [accused students’] due process, we investigated colleges, & held them accountable for Title IX violations when they failed to protect the rights of the accused.”
What was his evidence for this assertion? Not OCR’s 2011 or 2014 guidance—which applied to every school in the country, but whose terms Duncan didn’t even mention in his attacks on Kelly. Not the public remarks of either Obama or Biden—which he didn’t mention. Not other administration initiatives, such as “It’s On Us”—which, again, he didn’t mention. Not Lhamon’s threats to pull funds—which he didn’t mention.
Instead, Duncan denied Kelly’s claim (that “the Obama administration overcorrected the problem, and swung the pendulum too far back over against the accused, completely eroding their due process rights”) by citing a few throwaway passages about due process in two (UVA, Minot State) of the dozens of resolution letters between OCR and various universities. This is nothing short of an Orwellian rewrite of the Obama administration’s record.
Set aside the fact that material in these two letters applied only to the two schools, and had no influence on the guidance—which OCR head Lhamon said was binding—on the other thousands of colleges and universities. Take the UVA letter, the more important of the two. As far as we know, the OCR complaints here were filed by accusers, not by accused students. And the resolution letter reflected that situation: virtually the entire letter involved demands to make the UVA system more accuser-friendly. It contains one passage mentioning that an “informal” resolution briefly used by UVA was unfair to both parties. And yet, as Duncan surely knows, a crusade against handling sexual assault complaints informally has been a hallmark of the accusers’ rights movement. Whether the process was unfair to the accused was irrelevant to OCR. That’s the record of standing up for the accused from the former Secretary of Education?
Unsurprisingly, the resulting UVA policy seems far more unfair to the accused than the one it replaced. UVA’s “hearing” provides deference to the single investigator’s report, which comes after a process with no cross-examination—indeed, precisely the sort of policy that regulations mandating some form of cross-examination would prohibit.
It’s not clear why Secretary Duncan chose to erode his credibility making such a misguided attack on Kelly. But it’s deeply unfortunate that he did so.