Education's new rules on sexual harassment restore fairness — and it's about time
S E E D E D C O N T E N T
Nine years ago, the Obama administration mandated changes to how colleges and universities handle allegations of sexual harassment and assault. Those changes violated both the right of college students to due process and the right of the general public to a rulemaking process that is accountable to the people and not the whims of government officials. The Trump administration has corrected both of these errors. Anyone who cares about individual liberty and the separation of powers should celebrate these changes.
In April 2011, the Office for Civil Rights in the Department of Education issued its now infamous "Dear Colleague" letter to more the more than 7,000 colleges that receive federal funding. Without providing any notice or taking any public comment, the administration demanded that universities dramatically alter their procedures for investigating allegations of sexual assault and disciplining the accused. The office followed up with a 2014 Q&A that reinforced, and even expanded upon, the changes. Many of these changes violated the due process rights of accused students in ways that never would be permitted in any other proceeding.
For example, students could be punished - and even expelled - even if there was significant evidence of their innocence, as long as the university could conclude that a preponderance of the evidence favored guilt. This meant that a student could be expelled even if the only evidence was a claim by one student and a denial by the other.
Other due process violations abounded. Accused students were not entitled to cross-examine their accusers, but accusers could appeal not-guilty findings. The timeline of adjudications was dramatically accelerated so that universities had to render decisions within 60 days - not nearly enough time for a meaningful investigation, given the extraordinary gravity of the charges in sexual assault cases.
On paper, these changes were appalling - but in practice they were even worse. Many universities adopted a presumption against the accused, requiring them to prove their innocence, thus abandoning the longstanding principle that accused parties are "innocent until proven guilty."
Rather than reducing the burden on institutions, the result was a dramatic increase of lawsuits brought by students fighting back against botched sexual assault cases (there were only seven such lawsuits right after the letter was released, but 78 in 2017 and another 78 in 2018). The policy was an unmitigated disaster in every respect.
Many of these problems could have been avoided had the Obama administration given the public an opportunity to offer input on the proposed policy changes. Instead, the administration claimed these policies had been established through a murky, secretive series of unpublished private letters between the Office of Civil Rights and a couple of universities. But unpublished and informal letters do not form a valid legal basis for infringements upon individual liberty.
Fortunately, the Trump administration's Department of Education has taken steps to repair the damage from the shoddy 2011 guidance. In its revised rules, the agency declares that students accused of assault must be given a presumption of innocence and be allowed to cross-examine their accusers. Universities can apply a much more protective "clear and convincing evidence" standard that respects the rights of the accused.
The new rules also offer a definition of "harassment" that is far more protective of fundamental free speech rights. Under the earlier guidance, a student could be punished for "unwelcome conduct of a sexual nature," a subjective standard that led universities to ban things such as offensive cartoons or sexually provocative artwork. Under the revised rules, it is clear that harassment must be "severe, pervasive and objectively offensive." This standard parallels existing workplace harassment standards and strikes the right balance between protecting free speech and punishing inappropriate sexual behavior.
One lesson here is that transparency matters when it comes to government rule-making. Government bureaucrats are not allowed to make law by fiat. Instead, executive agencies engaged in rulemaking must conduct a transparent process in which they receive public feedback on proposed rules. The new rules were enacted through a fair process that allowed for full public comment and debate.
Finally, due process matters. Those who are accused of serious offenses are entitled to protections - including the right to notice, a fair proceeding and the opportunity to be heard. In the absence of fair process, it is impossible for accused individuals to defend themselves against false charges and unjust smears. Restoring those key principles of justice to their rightful place is worth celebrating.
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About time this "travesty" of justice was corrected!
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Your article is right on.
Several centuries of women being treated as second class citizens, decades of women not being believed, ignored or worse, being ridiculed, chastised or accused of "asking for it", but the "travesty" you jump to defend is the last 6 years of college sexual harassment policy being tilted slightly in women's favor.
Myth: A lot of victims lie about being raped or give false reports.
"Fact : Only 2-8% of rapes are falsely reported, the same percentage as for other felonies."
" Research for the Home Office suggests that only 4% of cases of sexual violence reported to the UK police are found or suspected to be false. Studies carried out in Europe and in the US indicate rates of between 2% and 6%."
"In 2016, over 300,000 cases of rape or sexual assault were reported in the U.S. [10] However, many more rapes or sexual assaults may go unreported; some suggest that only eight to ten percent of women report their rapes to the police, leaving at least ninety percent of rapes unreported. [11] Trump has not denied that sexual assault and rape occur, but rather, he fearmongers by referring to the supposed prevalence of false accusations. While an estimated two to eight percent of sexual assaults or rapes are falsely reported, [12] this number only affects the number of reported rapes; therefore, the amount of false reports in comparison to the total number of sexual assaults and rapes is likely closer to .002 to .008%. [13] Statistically, it is overwhelmingly more likely that a person alleging sexual assault or rape is telling the truth than making a false accusation."
"One set of statistics says people who have been sexually assaulted are 4 times more likely to contemplate suicide"
The reality is some weak little misogynists are scared of getting caught or called out for their sexual abuse and assaults of women which has become a favored past-time for some sick pieces of trash in college who weren't taught by their parents how a real man treats women with respect. The odds of someones daughter being sexually assaulted while attending college is FAR higher than the odds of someones son being falsely accused. Being oh so concerned with the two young men who statistically might get embarrassed or lose out on some opportunity or even serve jail time for something they might not have done versus the 98 young women who will likely now have PTSD from a sexual assault or rape even though they did nothing wrong either, I think I'd consider what was happening to the women the real travesty that should end.
If you think about it, those valid claims made with the large amount going unreported, those girls were falsely accused of being sluts, of "wanting it", then abused and then given a life sentence of being a victim and sexual assault survivor. How is that not more of a travesty than the small handful of false accusations. While I think any false accusation is terrible, I find the assaults far more prevalent yet women have far fewer protections.
This line from the article makes no sense. First they say that if the university concludes if there is a "preponderance of the evidence favored guilt" that the student could be punished or expelled. Then they claim that means kids could get expelled even if the " only evidence was a claim by one student and a denial by the other".
Preponderance: noun - the quality or fact of being greater in number, quantity, or importance.
If the only evidence is one persons word against the others, then there is no "preponderance of evidence". If colleges really were expelling kids for simply being accused with no other evidence then they certainly should fix that policy.
Here is the text of the 2014 Obama era guidelines:
"A-5. What are a school’s basic responsibilities to address student-on-student sexual
violence?"
"Answer: When a school knows or reasonably should know of possible sexual violence, it
must take immediate and appropriate steps to investigate or otherwise determine what
occurred (subject to the confidentiality provisions discussed in Section E). If an
investigation reveals that sexual violence created a hostile environment, the school must
then take prompt and effective steps reasonably calculated to end the sexual violence,
eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects."
"But a school should not wait to take steps to protect its students until students
have already been deprived of educational opportunities."
"Title IX requires a school to protect the complainant and ensure his or her safety as
necessary, including taking interim steps before the final outcome of any investigation.10
The school should take these steps promptly once it has notice of a sexual violence
allegation and should provide the complainant with periodic updates on the status of the
investigation. If the school determines that the sexual violence occurred, the school must
continue to take these steps to protect the complainant and ensure his or her safety, as
necessary. The school should also ensure that the complainant is aware of any available
resources, such as victim advocacy, housing assistance, academic support, counseling,
disability services, health and mental health services, and legal assistance, and the right to
report a crime to campus or local law enforcement."
I don't really see what's so flawed with that policy. I believe that most men like myself, especially those with daughters, don't consider the actions taken to be too harsh on young men and perhaps it's a positive thing to put a little fear in those who think its no big deal to get college girls drunk and then take advantage of them. I think most of those who were whining and crying about the rules Obama put in place are those same guys who acted that way while they were in college and now with 20/20 hindsight think how their lives could have been impacted if those rules had been in place when they were in college being young, dumb and full of testosterone. They realize that the way they treated women as disposable objects is no longer acceptable and that's making their skin itch with guilt and worry for their sons who they've raised to be just like them. They are worried their kids are going to get caught, not falsely accused. With the statistics so low of false accusations, how could they really be worried about that? And if the low 2% of false accusations is scary for parents of young men, how scary is the fact that 1 in 5 women will be sexually assaulted or raped in their life time. If the false accusation rate was at 20% would anyone send their sons to college anymore? Yet parents of young girls are expected to send their girls to those schools where they have a much higher rate of being assaulted than any boy has of being falsely accused.
That is all well and good, but preserving the rights of the accused matters, too.
Sorry if you feel that railroading someone is adequate, just and fair.
Betsy Rich Bitch Devos, #1 enemy to public education.
Care to address the article?
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Lol ... jealousy on display ..... likely on more than one level ....
No need for jealousy here.
This ruling doesn't really have any effect on EDUCATION, just on universities doing the right things regarding rape allegations.
Sure I'd like to be filthy rich too but I'm not jealous.
Riiiiight.
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Well, the ACLU is jumping in to sue to take away the civil liberties of the accused. DeVos was right to restore the legal protections of the accused.
Betsy Devos is NOT THE TOPIC.
She is NOT MENTIONED IN THE ARTICLE.
Isn't that her picture?
It is but that was provided by the source and we have to include a photo to seed the article. This isn’t the photography group.
Why, it sure is!!
What's that got to do with anything? Her name is NOT mentioned in the article. But I see how it is considered on topic for some unfathomable reason.
It was just a question. I just didn't understand why the picture was included with no mention of her in the seed. Good seed btw.
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Comments removed for off topic
For the record, I, as seeder of this article, have flagged NOTHING.
Yeah, No surprise. Biden's a no go zone here.
The views of the leader of a national party on a subject are "off topic". I guess I should just call President Trump a name. That's always acceptably on topic, no matter what the topic is.
So is God and believer bashing..
Sean,
Biden wasn't mentioned. You are free to talk about him as much as you like.
You feel free to comment on anything you wish to on any of my articles.
I will never again flag anyone for being off topic as it carries no meaning.
Go for it, my friend!
Now I have flagged one comment about Devos as being OFF TOPIC.
Hmmmmmm………..
Might be interesting to see how long it will be allowed.
The flag was disallowed...
yeah, and I was totally shocked
/s
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All the comments removed were commentary about members. I could have written up tickets but I saved them that by just getting rid of them. That was me being nice.
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