Betsy DeVos and Title IX

Betsy DeVos is apparently considering rolling back the Obama Administration’s Title IX regulations that govern the way schools handle cases of sexual harassment or assault. My former classmate had this to say:

Noble sentiment, here. Sexual assault is bad, of course. We should want it to be annihilated. But this raises a bunch of questions. Who is “we”? Must “we” include the federal government? And how much “more” do we have to do to combat sexual assault before we’ve started doing too much? Is there even a limit? Presumably there is. We’ve passed it already.

There are two reasons why Betsy DeVos should roll back the guidance and regulations at issue. First, they are illegitimate. And second, they would be bad policy even if they were legitimate. Sexual assault is an evil that I wish we could eradicate, but the fact that sexual assault occurs does not justify executive overreach and civil rights violations.

The Title IX statute governs gender-based discrimination in educational institutions. The meat of the statute (most of the rest of the statute consists of exceptions to this clause) is as follows: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance….” Nowhere in the statute do the words “sexual harassment” or “sexual assault” appear. This is because the statute is not about sexual harassment or sexual assault. It is about gender-based discrimination.

How is it, then, that Title IX has become nearly synonymous with procedures for responding to accusations of sexual assault? In short, the Obama Administration decided that if a college fails to respond adequately to sexual assault allegations, it is creating a hostile environment for women that effectively excludes them from the benefits of an education program.

Now, this would be a decent rationale for amending Title IX, but it is by no means a sufficient justification for claiming that Title IX already requires colleges to respond in such-and-such a way to sexual assault allegations beyond what their respective jurisdictions already require (because sexual assault is already a crime, let’s remember). Title IX, however, has not been amended to deal with sexual assault. All of the guidance pertaining to Title IX and sexual assault has no constitutional legitimacy; it is the work of unelected bureaucrats. Are we really okay with unelected bureaucrats making rules to govern the sex lives of college students? I’m not.

But even if the guidance had constitutional legitimacy, it would be bad guidance. It’s bad because it violates the due process rights of the accused and relies on bad definitions of “sexual assault” and “consent.” My former classmate is at least somewhat familiar with the first of these arguments. This is his response to a friend who presented it:

Well, to start, this isn’t just school policy. These are federal regulations which schools must follow in order to receive federal funds. In other words, if there are due process concerns (and Jonah does not dispute that there are), then those concerns exist because the federal government is compelling schools to handle sexual assault cases in a certain way. (And it’s not like there’s a caveat attached to the 5th and 14th Amendment Due Process clauses saying that they only apply in criminal cases.)

In any case, Title IX tilts the scales in favor of the accuser to the detriment of the accused. This is a problem, especially when you factor in the ridiculous definitions of “sexual assault” and “consent” (affirmative, enthusiastic, and very very specific) that are floating around, these days. These terms have been redefined in such a way as to potentially include any sex act which one of the parties later regrets (i.e. retroactively decides that it was nonconsensual). This, combined with the lack of due process protections, can and does result in schools taking action against the accused on shaky grounds.

Take what happened at Amherst, for instance. A woman and a man engaged in sexual activity. He was blackout drunk (incapacitated!) and did not remember the encounter. She later wrote in a student publication that she had been made to participate in a nonconsensual sex act. Text messages that she sent the night of the incident indicate that this was not true. One thing led to another, and the man (who seems to be the actual victim, here, in more ways than one) ended up getting expelled from Amherst for this incident. Amherst never looked at the text messages and refused to allow the man to appeal the decision. He later successfully sued the college in Federal Court.

This is an extreme case, but the fact that it happened should give us pause. As nice as it sounds to talk about “doing more” to combat sexual assault, there are serious drawbacks to the approach taken by the Obama administration. Just because rape is bad doesn’t mean that we have to treat all rape accusations as true, and the principle of “innocent until proven guilty” should not be limited to the courts. Requiring colleges to treat unproven allegations as true opens the door for abuse, as does the broadening of the definitions of “sexual assault” and “consent.” So let’s not do that.

To make it clear, I have no sympathy for actual perpetrators of sexual assault. What’s of concern for me is the way the accused are treated. The presumption of innocence, much like free speech, freedom of religion, and other fundamental rights we hold dear in the U.S., is not just a legal doctrine, but a cultural norm. The more we tell ourselves that some people, in some circumstances, should be punished by the government before their guilt is demonstrated in a court of law or an equivalent forum, the easier it will become to roll back civil rights protections. And that would be far worse than the status quo.

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