Pablo Martinez Monsivais/Associated Press
When Education Secretary Betsy DeVos last week announced plans to revise the nation’s guidelines on campus sexual assault, the predictable din of outrage drowned out the applause from some unlikely corners of college campuses: Many liberals actually approve.
Groups of Harvard Law scholars, feminist lawyers, and other university professors had long argued that the Obama-era policy for policing student sexual charges was unfair, creating a Kafkaesque system that presumed guilt rather than innocence. Now, those academics find themselves atypically aligned with the Trump administration on an issue as contentious as sexual violence.
“Betsy DeVos and I don’t have many overlapping normative and political views,” said Janet Halley, a Harvard Law School professor and expert on sexual harassment who supports the change. “But I’m a human being, and I’m entitled to say what I think.”
“Funny what strange bedfellows politics makes sometimes,” said association senior program officer Anita Levy.
At the center of the debate is the guidance former president Barack Obama’s administration gave to college officials in 2011 under Title IX, the education law prohibiting sex discrimination at schools. Pointing to the continued prevalence of sexual assault on campuses, the rule pushed colleges to take the issue more seriously or lose federal funding.
Covering faculty and students, the new guidelines demanded that schools address every accusation and adopt a weaker standard of evidence than some had already been using. Rather than proving a case beyond a reasonable doubt, as in a criminal trial, or offering “clear and convincing evidence” that an offense was committed, it called for claims to be adjudicated based on a “preponderance of evidence” — to determine whether guilt was “more likely than not.”
That made the bar lower to prove a sexual assault than any other kind of infraction that warrants discipline on campus, Levy said.
When DeVos raised such issues last week, legions of feminists, distrustful of a president who had bragged about his sexual conquests, bristled at the sound of it. But critics in academia and law had been voicing those same complaints for years. In 2014, 28 Harvard Law professors published an open letter in The Boston Globe criticizing Harvard’s then-new policy as “overwhelmingly stacked against the accused.”
“As teachers responsible for educating our students about due process of law, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach,” wrote the professors, who included Charles Ogletree, an Obama friend and mentor, and emeritus professor Alan Dershowitz.
Also among them were four feminist professors who wrote a letter to the Department of Education last month beseeching DeVos’s department for a revision of the rule. Definitions of sexual wrongdoing are now far too broad, they wrote.
“They go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment,” they wrote. “The definitions often include mere speech about sexual matters. They therefore allow students who find class discussion of sexuality offensive to accuse instructors of sexual harassment.”
The authors — Halley, Elizabeth Bartholet, Nancy Gertner, and Jeannie Suk Gersen — have all researched, taught, and written about sexual assault and feminist legal reform for years. Halley, who has represented both accusers and the accused in campus cases, said her colleagues maintain universities should have robust programs against sexual assault.
“We’re feminists. We get that,” Halley said in an interview. “But we don’t think it’s beneficial to address it in a way that includes overbroad definitions, structurally biased decision-makers, and due process violations.”
The professors argue in their letter that the way the policy has played out on campus led to adjudication that was “so unfair as to be truly shocking.” Some students don’t get to see the complaints against them, the factual basis of the charges, the evidence gathered, or the identities of witnesses, they wrote. Some schools don’t even provide hearings or let a lawyer speak up for the accused.
Still, many women reacted with alarm to see the Trump administration stepping up to defend accused rapists. Rape survivors said they feared their claims would be ignored or doubted once again. On Twitter, where the outrage machine churned, activist Amy Siskind blasted someone for repeating the “hackneyed due process talking point.”
“It’s very hard to get anybody to hear a nuanced position on this issue,” said Halley. “There’s passionate advocates on either side who will pretty much say anything.”
The optics could hardly look worse for Trump, whose treatment of women during his campaign spawned worldwide women’s protests the day after his inauguration. Many women could see the announcement only in the context of Trump’s preelection boasts about his penchant for kissing women and grabbing their genitals.
Dana Bolger, cofounder of Know Your IX, an advocacy group for survivors of sexual assault, called the policy change “a heartless move, but one that is not unexpected coming from an administration by a man who has bragged openly about sexually assaulting women.”
Activists have been eyeing DeVos with suspicion since revelations that she and her husband had contributed $10,000 to the Foundation for Individual Rights in Education, a group that advocates for free speech on campuses and that has fought the Obama policy. When DeVos recently held discussions about changing the policy, she included representatives of men’s rights groups.
“They don’t believe survivors. They don’t think they are as credible as the accused,” Neena Chaudhry, director of education for the National Women’s Law Center, charged last week.
Women’s rights groups also recoiled upon hearing that Candice Jackson, the acting head of the Office of Civil Rights, dismissed the bulk of sexual assault accusations as drunken sexual encounters that women had later reconsidered and found problematic.
(Jackson is the person who appeared at a presidential debate with the women who had accused former president Bill Clinton of sexual misconduct.)
Lee Burdette Williams, who left her post as dean of students at Wheaton College after her work was consumed by policing sexual assault, said the complicated issue can be oversimplified by the sharp political and cultural divisions of the moment.
“There’s not a lot of sense that if we collaborate and we bring all these people together and really work on this, good things will happen. There’s just these sides,” she said. “But I’ve interacted with the people [defending accused students] and they’re not awful people. They’re really good people. They’re moms who are just trying to figure this out. But we can’t even have these conversations anymore.”
Some professors who agree with the change in policy still remain skeptical about the way it will play out in the Trump administration. They say they intend to watch closely and weigh in with their own recommendations and they note, with frustration, that the Obama administration never sought public input on the rule it handed down. “The possibility of good policy coming out of this administration is very low,” Halley said. “The surprise is that such bad policy came out of the prior administration on this issue. It’s very confusing.”
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