The left’s latest false narrative is that the Trump administration is “pro-rape” because the education department is scrapping former President Barack Obama’s campus sexual misconduct policies.
Democrat politicians, Hollywood elites, and feminist and LGBT advocacy groups are blasting U.S. Education Secretary Betsy DeVos’s announcement last week that her department is rescinding the Obama administration’s “guidance” on sexual misconduct that turned over serious sex assault allegations to untrained “kangaroo” courts on college campuses.
In a letter Friday, Acting Assistant Secretary for the Department of Education’s Office for Civil Rights Candice Jackson summarized the problems with the 2011 Obama-era Dear Colleague letter, which many political activists on the left and in administrative positions in colleges and universities now assume is the law:
The Letter insisted that schools with an appeals process allow complainants to appeal not-guilty findings, even though many schools had previously followed procedures reserving appeal for accused students.
The Letter discouraged cross-examination by the parties, suggesting that to recognize a right to such cross-examination might violate Title IX.
The Letter forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis.
The Letter provided that any due-process protections afforded to accused students should not “unnecessarily delay” resolving the charges against them.
The Obama-era Dear Colleague letter discouraged the use of police investigations as primary because of their higher standards for criminal evidence, and threatened schools with a loss of Title IX funding if they did not conduct their own investigations into sexual misconduct complaints that favored the alleged victims:
Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX.
Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.
[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).
The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.
Though peppered with “fairness” and “impartiality” language, the Obama administration’s policies ultimately asserted, “[W]hen taking steps to separate the complainant and alleged perpetrator, a school should minimize the burden on the complainant.”
When it came to due process, the Obama policies clearly favored the alleged victim.
“OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing,” the Obama administration said. “Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”
A senior contributor at the Federalist and political columnist for the New York Observer, Ashe Schow writes about the effects of the Obama-era policies:
In the years since the Obama guidance was posted, activists—along with the media and legislators—have succeeded in expanding the definition of sexual assault.
Now, essentially, if a woman says she was raped, she was raped. Drunken hookups are now rape, even if both parties were equally drunk. Regretted sex is now rape, because, in the words of one activist, students “need some time to reflect” before deciding to make an accusation. There is virtually no way for a student—especially a male student—to have consensual sex on campuses, because if the other person claims it wasn’t consensual, that’s all a school needs because they want to show they take sexual assault seriously.
The editorial board of the Wall Street Journal notes the Trump education department “felt the need to explicitly require” clarification of “the most minimal fairness issues, which speaks volumes about the Obama-era directives.”
The editorial board continues, referring to the Obama administration’s policies as “bullying to serve political goals”:
For instance, the [Trump] department now says, Title IX investigators should be free from bias and conflict of interest, and they should consider both incriminating and exculpatory evidence. Imagine that. Accusers shouldn’t be given preferential treatment over the accused during the adjudication process, and training materials and investigative techniques shouldn’t include gender-based stereotypes or generalizations.
The Obama administration also dictated its weighty campus sex misconduct policies without opportunity for public comment – abandoning the rule-making procedures required by the Administrative Procedure Act.
Washington, D.C.-based attorney Hans Bader wrote at College Insurrection following the release of the Obama-era Dear Colleague letter:
Legal scholars have criticized the Education Department’s Dear Colleague letter for that very reason. For example, Cornell law professor Cynthia Bowman argued that Cornell University should not change its procedures in response to the Education Department’s demands, because the lower standard of proof mandated by the Department in its letter “has not been subjected to notice and comment.” Bowman observed that the Education Department’s directive was “not an administrative regulation, has not been subjected to notice and comment, and thus does not have the status of law.” “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Professor Bowman noted. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” “Indeed, there is general agreement among faculty at the Law School that the procedures being proposed [by the Education Department] are Orwellian,” she added.
Nevertheless, Sofie Karasek, Director of Education and co-founder of End Rape on Campus (EROC), said in response to DeVos’s announcement that the Obama-era policies would be rescinded, “Betsy DeVos and Candice Jackson’s intentions are clear: to protect those who “grab” by the genitals and brag about it — and make college campuses a safer place for them.”
In its statement, EROC quotes the now debunked “1 in 5” statistic:
The magnitude of campus sexual assault is undeniable: 1 in 5 women, 1 in 16 men, and nearly half of all LGBTQ students will experience sexual violence in college. This announcement comes during a period known as the “red zone” — the time when students are most likely to experience sexual assault. At the very time we should be doubling down to educate students about consent and adhering to standards — they are doing away with the standards.
The Obama administration itself quoted the same “1 in 5” statistic in its Dear Colleague letter:
The statistics on sexual violence are both deeply troubling and a call to action for the nation. A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college.
A study, released in 2014 by the U.S. Department of Justice itself, however, found the rate of rape and sexual assault for female college students is actually 6.1 per 1,000, or .03-in-5. The study also found the rate for non-students is higher – 7.6 per 1,000.
“In fact, non-students are 25 percent more likely to be victims of sexual assault than students, according to the data,” a report at the Federalist noted. “And the real number of assault victims is several orders of magnitude lower than one-in-five.”
Yet, the political left seems on a train to engage in another of their false concrete narratives. According to the left, if you are pro-life, you are “anti-women.” If you think the nation’s borders should be protected, you are “anti-immigrant.” If you think marriage is between one man and one woman, you are “homophobic.” And, if you think students accused of rape should be allowed their constitutional due process rights, you are now “pro-rape.”
In an open coalition letter, a group of primarily feminists, LGBT advocates, and others say DeVos’s decision to rescind the Obama-era policies is “putting the safety and lives of students at risk,” and continues her “reckless campaign to destroy the laws and processes in place to protect students from sexual assault and allow all students an equal access to education.”
The letter continues:
Secretary DeVos continues to show callous disregard for the thousands of students who are subject to sexual violence and abuse every year. Instead, she is very clear that her main if not sole concern is the tiny number1 [sic] of students wrongfully found responsible for rape, without any evidence that this is a wholesale problem or extends beyond the few one-sided anecdotes she provides.
“Mrs. DeVos’s critics want the public to believe you’re either with victims of sexual assault, in which case you must support the 2011 Title IX regime, or you’re siding with rapists,” summarizes the editorial board of the WSJ. “That’s a false choice.”
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