With the possibility of new Title IX regulations looming, defenders of the now-rescinded Obama-era guidance have aggressively sought to defend their years-long crusade against campus due process. But in several remarks last week, ex-Obama officials and their supporters provided unintentional insight on why the administration’s Title IX policy was so unfair
In an interview with ESPN, ex-Office for Civil Rights head Catherine Lhamon commented on a study showing that in Power Five conferences (Big Ten, Big XII, ACC, Pac 12, and SEC) male athletes are disproportionately accused of sexual assault. She noted that absent the high attention such allegations received, the campus sexual assault movement “would be largely nonexistent.” Lhamon added, “The capturing of the hearts and minds of the American public is what has moved this issue. The response of student communities to sexual violence among athletes has been really important.”
Lhamon thus conceded that “the hearts and minds of the American public” were captured by highly atypical cases. If, in fact, the typical accused student was a Baylor football player, or ex-Florida State quarterback Jameis Winston, perhaps Lhamon’s crusade—built on the assumption that university Title IX tribunals were tilted toward the accused—would have made sense. But the vast majority of accused students aren’t high-profile athletes from universities that make millions of dollars off some of their athletics programs—and thus have an incentive to whitewash allegations against athletes. Lhamon surely knows this; her willingness not to have used her position to correct the public’s misimpression speaks poorly of her integrity.
Lhamon’s comments also raise profound concerns about the argument—common among accusers’ rights organizations—about the prevalence of a campus “rape culture” necessitating accuser-friendly procedures. If the movement would be non-existent but for cases involving athletes at Power Five conferences (people who not only have received special procedures but also have special circumstances—housing, tutoring, other logistical support—on campus), it’s hard to fathom a nationwide “rape culture” on campuses that explains the activities of the overwhelming number of accused students who aren’t Power Five conference athletes.
After a Wall Street Journal scoop that the new regulations would prohibit the “single investigator” model and thus require some form of cross-examination, an ex-Obama Justice Department official, Anurima Bhargava, gave the view, as summarized by the Journal, that the Obama “administration discouraged the use of cross-examination because it could make sexual-assault victims reluctant to come forward.” Bhargava herself said, “If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience.”
Bhargava deserves credit for her candor: while Lhamon and other Obama-era officials doubtless were hostile to cross-examination, they refrained from explaining why. The problem with Bhargava’s assertion, of course, is that it assumed that the “someone” wanting to tell “their story” is telling the truth, rather than recognizing that the purpose of the Title IX tribunal process is to determine the truth.
Meanwhile, last week several accusers’ rights organizations, the most prominent of which is SurvJustice, amended their complaint in a lawsuit against Betsy DeVos regarding the interim Title IX guidance. As part of their effort to prove that DeVos and her aides have turned a blind eye to gender discrimination, the groups criticized DeVos for contributing to FIRE. They also chastised former acting OCR head Candice Jackson for urging staffers to read Laura Kipnis’ book, Unwanted Advances: Sexual Paranoia Comes to Campus, which received glowing reviews across the ideological spectrum.
The accusers’ rights organizations also criticized DeVos and Jackson for seeking to meet with groups such as SAVE or FACE. And while it’s true that Lhamon refused to meet with groups representing accused students during her tenure at OCR, it’s hard to argue that hearing from both sides suggests inappropriate behavior by a government official.
Without the power of OCR behind them, it’s striking how defenders of the Obama-era policies have struggled to defend their views.
Image: Catherine Lhamon – ESPN interview.