A liberal feminist supports DeVos’s changes in Title IX

There are two reasons why folks are opposed to Betsy DeVos’s revised Title IX regulations for adjudicating sexual assault and harassment in colleges.  The first is because the changes are proposed by a member of the Trump administration, and a particularly hated one. The second is that the general thrust of the changes protect the rights of the accused person more strongly and strengthen due process.

While the regulations aren’t perfect, I see them as a substantial improvement over the Obama-era regulation, especially the standards of guilt based on “preponderance of the evidence” (>50% likelihood of guilt) rather than “clear and convincing” evidence (roughly > 75% chance of guilt) or the court standard of “beyond reasonable doubt”. At present, if the finder of fact who collects the evidence—who is, unbelievably, also the judge and jury—finds the accuser even just a tiny bit more credible than the accused, it’s curtains for the latter: explusion and probably the ruining of one’s life. Sadly, even under DeVos’s changes colleges are still allowed the option of choosing “preponderance” of evidence above some more stringent standard, and I’m sure most will opt to keep the looser standards.

But the new regulations also eliminate the possibility of the investigator also being the judge and jury, which is good since it promotes objectivity; and they also allows the accused to see all the evidence against him (it’s usually a male), as well as allowing a companion of the accused (often a lawyer) to cross-examine the accuser. Such cross-examination was not allowed before, but is essential for even the most rudimentary form of justice.

But even the American Civil Liberties Union (ACLU) has opposed these regulations, saying, as many Leftists do, that they “favor the accused” (note the irony of the ACLU criticizing changes that strengthen civil rights). Others say that the proposed changes “are biased against survivors”, not realizing that the hearings are supposed to determine whether someone is a survivor.  Remember, a “survivor” is not the same thing as “an accuser”.

It’s hard for a liberal, then, to swallow DeVos’s changes, as they come from Trumpism and supporting them also makes you seem to be someone who actually promotes rape, or at least wants rapists let off easily. (That’s not true, of course, because even in court there’s a much higher bar to convicting someone.)

Lara Bazelon, an associate professor and director of the criminal juvenile justice and racial justice clinics at the University of San Francisco School of Law, wrote the editorial below that appeared in the New York Times two days ago. Like me, Bazelon favors the Title IX changes, largely (but not entirely) on racial grounds.

It’s sad when someone like Bazelon—or any liberal—has to apologize for agreeing with the Title IX changes, even though objectively they seem fairer than their predecessors. But apologize we must—to placate the outrage crowd. Nevertheless, Bazelon takes a strong and principled stand, noting that the changes in regulations have in fact been tacitly approved by three appellate courts who found the present system unfair for violating due process.  Here’s one ruling from the Sixth Circuit Court of Appeals in Michigan (click on screenshot to see the whole opinion):

 

But she adds the racial consideration, too, based on one of her clients (a black student) being unfairly suspended in the face of no evidence at all save an assertion, and after a process that had no hearing. As she notes:

The Office of Civil Rights does not collect data on race in Title IX cases, but the little we know is disturbing: An analysis of assault accusations at Colgate, for example, found that while only 4.2 percent of the college’s students were black in the 2012-13 school year, 50 percent of the sexual-violation accusations reported to the school were against black students, and blacks made up 40 percent of the students who went through the formal disciplinary process.

We have long over-sexualized, over-criminalized and disproportionately punished black men. It should come as no surprise that, in a setting in which protections for the accused are greatly diminished, this shameful legacy persists.

Of course one could claim that black students commit sexual violations at a disproportionate rate, but I don’t think many opponents of the Title IX changes would want to say that, and at any rate we have no data.

But in some sense it doesn’t matter. Title IX needs to be modified along the lines of the DeVos changes because it’s fairer to everyone, not just black men. (If there’s a bias against black men that leads them to be accused more or found guilty more often, that bias will remain, though it will be harder to instantiate if the evidentiary standards are higher.)

I really can’t see many good reasons for opposing these changes, and they’ll become almost mandatory anyway if there are more court rulings mandating due process in college. Nevertheless, here we again see a clash between liberal principles (due process vs. justice for women), and to many it seems clear that “survivors’ rights” automatically trump due process.  I don’t think that’s a good way to think about the issue, but regret that Bazelon has to apologize for taking the right side:

The DeVos reforms are in their public comment period, which gives people on all sides of this debate a chance to weigh in. That is a good thing. I know my allies on the left will criticize my position, but we cannot allow our political divisions to blind us to the fact that we are taking away students’ ability to get an education without a semblance of due process. What kind of lesson is that?

Here’s Alyssa Milano using sarcasm—a Dr. Seuss-like poem—to mock and denigrate the proposed changes in Title IX. This is deeply misguided (yes, the off-campus regulation is debatable, but in general the changes are good. Note that Milano asserts that the changes “protect predators”. Here we see ideology trumping (excuse the pun) common sense.

 

 

36 Comments

  1. eric
    Posted December 6, 2018 at 1:05 pm | Permalink

    Mixed feelings. Mostly I think it’s a shame that our judicial system is to the point where students suffering a rape or assault would rather appeal to a university authority for an academic punishment rather than go to the police and courts to get a criminal prosecution, or the civil courts to get a civil ruling. When a rape victim doesn’t think our judicial system can help them, it means our system is broken.

    I certainly don’t think we need court-level protections of the accused for relatively minor academic changes, like being told to attend a different section of a class or stay away from a certain dorm. Even in our legal system, we recognize different levels of confidence in guilt are appropriate for different types of punishment. Preponderance of evidence vs. beyond reasonable doubt, for instance. But when you start talking about things like loss of scholarship or expulsion, yeah those get closer to the sorts of punishments that our strongest due process protections were invented to protect the innocent from.

    • mikeyc
      Posted December 6, 2018 at 2:51 pm | Permalink

      It is also a shame that many of our citizens are presumed to be guilty and are given little opportunity to defend themselves.

      We have spent centuries trying to resolve unsolvable issues like these. The best we can do is trade one kind of injustice for another.

    • Ken Kukec
      Posted December 6, 2018 at 3:31 pm | Permalink

      I don’t think it’s a matter of the justice system having come to any point; there has always been a stigma attached when women report rape and sexual assault cases. The justice system today is actually a much less hostile place for such victims than it’s ever been before, what with sexual-history shield laws and with the general consciousness-raising that’s occurred regarding sex offenses (due in no small part to the increase in the number of women police officers, prosecutors, and judges).

      None of which is to say that the judicial process isn’t still a daunting place for sex-crimes victims.

    • Zaphod
      Posted December 7, 2018 at 7:44 am | Permalink

      Maybe we were in a place where the malicious, the tragically fragile and the improbably entitled were given an option to destroy people without the inconvenience of a police investigation and that has been partially rectified.

      This is more than a campus issue. There is a concerted effort on the part of feminist organisations in the West to remove the admissibility of as many types of exculpatory evidence as they can in sexual prosecutions. There are organisations like LEAF in Canada whose method is to encourage the use of bogus stats and flaky “expert witnesses” to corrupt the system in terms of the advice given to judges and to set legal precedences. Judges have been removed from office for acquittals when that was clearly the correct ruling.

      “Others say that the proposed changes “are biased against survivors”, not realizing that the hearings are supposed to determine whether someone is a survivor.” That is realised. This is what “believe women” is all about. The logic is that women don’t lie about these things and that to presume innocence is to disbelieve the accuser.

  2. Jon Gallant
    Posted December 6, 2018 at 1:13 pm | Permalink

    Bravo to both PCCE and Lara Bazelon. Things have gotten very peculiar indeed when the ACLU opposes elementary rights of the accused in administrative, semi-legal proceedings.

    I scratch my head about the continuing diffusion of illiberal attitudes into places like the ACLU, the NYT, and many college and private company administrations. What is going on? Could propaganda from the bogus grievance studies fiefdoms in academia really have brought all this about? I suspect that we need a deeper sociocultural explanation, but what is it?

  3. Nicolaas Stempels
    Posted December 6, 2018 at 1:42 pm | Permalink

    I always thought the ‘Dear Colleague’ letter a mistake, one of the few of the Obama admin.
    We don’t even need to adhere to the idea that females are more devious than males.
    In a “he said, she said” situation ‘preponderance of evidence’ simply doesn’t do.
    As eric pointed out above, if the sanctions are more than minor academic changes, but expulsion and the like, a higher standard of evidence is needed.
    Unjust as it may be to the victims (not just of sexual assault or rape, but in general) I still think it is ‘better to let ten guilty ones go than to convict an innocent’.
    The fact that it was the odious Ms De Vos going back on this should be no argument.

    • eric
      Posted December 6, 2018 at 9:12 pm | Permalink

      In a “he said, she said” situation ‘preponderance of evidence’ simply doesn’t do.

      As I also said, that depends on what sort of punishment the court is considering. I’m perfectly fine with preponderance of evidence for something like a one-year “academic restraining order” (I’m making that up, but I’m thinking something like: don’t talk to the plaintiff, don’t email or text her, don’t make social page posts *about* her, strive to maintain a 100′ distance as much as taking your normal classes allow, etc…).

      Also, keep in mind that if someone decides to sue you in court for everything you have (plus as many millions more they want to tack on) and put you in bankruptcy, that suit will use the ‘preponderance of evidence’ standard. So arguably there’s no reason why it shouldn’t also be used for an academic investigation that would result in the loss of a scholarship worth tens to hundreds of thousands of dollars. OJ may have walked free under ‘beyond reasonable doubt’….but ‘preponderance of evidence’ cost him $33 million (at least on paper).

  4. rickflick
    Posted December 6, 2018 at 2:19 pm | Permalink

    I guess a fundamental issue is the difficulty of proving someone guilty of rape because in many cases there may be no hard evidence. A robbery will leave troves of evidence that can prove beyond a shadow of a doubt. Rape may leave nothing. Even when the perpetrator is nailed by DNA, how do you prove it wasn’t consensual? Robberies are never consensual.
    About 2% of rape reports result in convictions.
    Nearly 4% of robberies result in convictions.
    So, the move by Obama was to shift the goalposts. Perhaps a bit too far.

    https://www.rainn.org/statistics/criminal-justice-system

    • eric
      Posted December 6, 2018 at 2:49 pm | Permalink

      The fact that these crimes are difficult to prove makes me less inclined to have Universities oversee their investigation and punishment; a student government group or academic council is not a trained, professional, judicial body. Student advocates aren’t lawyers. Thus, by judging these things in Universities, I think you increase the likelihood of errors being made (for both sides), not decrease it. It doesn’t make sense to me to say “thees crimes are so hard our professionals get it wrong a lot…so let’s give them to the amateurs to adjudicate!” That’s an act of desperation, surely!

      • rickflick
        Posted December 6, 2018 at 2:55 pm | Permalink

        Makes sense.

  5. Randall Schenck
    Posted December 6, 2018 at 2:21 pm | Permalink

    Looking at the statistics on sexual assault on campus my first advise would be 911. Statistics say that 90% do not report at all.
    Everyone has a phone or two so keep the phone numbers of a couple of local criminal defense attorneys. There are attorneys that handle sexual harassment as well, so have a few numbers there. This suggestion goes for the accused and the accusers.

  6. Blue
    Posted December 6, 2018 at 2:38 pm | Permalink

    My query for Any:
    .What. are the properties, the characteristics, the endeavors
    of someone who ‘ld definitively be identified as
    a conservative feminist ?

    Of the kindness taught
    to me by my beloved and late Daddy,
    ” You ? You are not .a. feminist ?
    Why then, I am sorry for you.
    I am sorry for your loss. ”

    Blue

    • Posted December 6, 2018 at 4:48 pm | Permalink

      A feminist could be male or female, and a conservative feminist would fit a variety of molds. They could for example simply be one with conservative values (favoring small government, relaxed regulations, free market economy, gun rights, etc.) and they also believe that women can and should make headway into traditionally male dominated areas like business or politics. Sarah Palin is a variety of conservative feminist. Carly Fiorina, former CEO of Hewlett Packard and 2016 Republican presidential candidate as well, I expect.

      • Blue
        Posted December 6, 2018 at 5:07 pm | Permalink

        I do get, Dr Sturtevant, what you are trying
        to state.

        But, no, no feminist is Ms Palin.
        And neither is Ms Fiorina.

        .A. feminist by definition does not purvey
        nearly any of the agendae of the Republican
        party. The Republican party’s “conservative
        values” including, say, “small government” ‘s
        not funding healthcare programs aimed
        directly at women and women’s autonomy
        is only one, wee example in re those
        antethetical “values” thereof.

        Blue

        • Bob Murray
          Posted December 7, 2018 at 12:37 pm | Permalink

          So….
          Is it salt or sugar?

          • Blue
            Posted December 8, 2018 at 12:37 pm | Permalink

            I do not know, Mr Murray, what this means.
            I am certain, however, that others here
            on w e i t do not now what this means either.

            What are you asking ? actually ?
            IF, and only IF, you are wanting /asking for
            a serious, measured and kmowledgeable answer
            actually, then what does this mean ?

            Cuz otherwise and if .not and
            aaaall too common here, then I am done
            with mockery of me, unkindness and sarcasm.

            Blue

  7. Ken Kukec
    Posted December 6, 2018 at 2:59 pm | Permalink

    But apologize we must …

    I’ll apologize to no one for standing up for due process — though I think it’s appropriate for any right-thinking person to add a disclaimer anytime they agree with the odious Betsy Devos (or pretty much any other cabinet secretary in the Trump administration).

    • Randall Schenck
      Posted December 6, 2018 at 4:16 pm | Permalink

      I believe that Labor Secretary is about ready for some odious award for a great assist in letting a multi sexual predator off down in Florida. Talk about your due process…

      • Blue
        Posted December 6, 2018 at 4:23 pm | Permalink

        J E B U S, for certain, Randall !

        Oooophtah, .that one. is beyond words /
        beyond awards even … … .the. most odious !

        Blue

      • Randall Schenck
        Posted December 6, 2018 at 4:24 pm | Permalink

        I should make sure you have the name, Alexander Acosta, scumbag lawyer or prosecutor. Sex offender – Jeffrey Epstein.

        • Blue
          Posted December 6, 2018 at 4:58 pm | Permalink

          O, I knew of them both, Randall.
          But … … thank you. I think !

          Blue

  8. Ray Little
    Posted December 6, 2018 at 3:57 pm | Permalink

    I’m amazed that the ACLU is continuing with this ‘favors the accused’ thing. Didn’t someone in their office go ‘*cough, cough… presumption of innocence, cough*’. Didn’t everyone else then say, ‘Oh, right…’ and change the subject?
    Not to mention, are they not aware of the judicial decisions against the colleges which don’t follow due process?

  9. Posted December 6, 2018 at 6:59 pm | Permalink

    Of course one could claim that black students commit sexual violations at a disproportionate rate, but I don’t think many opponents of the Title IX changes would want to say that, and at any rate we have no data.

    I’m sure data exist to confirm or deny that. But we can hazard a guess based on tangental data:

    * Among the general population, 27% of sexual assaults are committed by blacks (13% of the population);

    * Some studies find that college athletes commit sexual assault at 6x the rate of non-athletes, with 1/3 of all campus assaults committed by athletes;

    * Blacks make up less than 3% of undergraduates, but 57% of college football players and 64% of college basketball players.

    https://www.rainn.org/statistics/perpetrators-sexual-violence

    https://www.wpr.org/student-athletes-commit-rape-sexual-assaults-more-often-peers

    https://www.washingtonpost.com/posteverything/wp/2015/11/11/black-college-football-and-basketball-players-are-the-most-powerful-people-of-color-on-campus/?utm_term=.842cd97e3616

    • Posted December 6, 2018 at 9:33 pm | Permalink

      The first paragraph is the quote, the rest is me.

    • XCellKen
      Posted December 6, 2018 at 10:16 pm | Permalink

      Perhaps athletes are more popular than the student body as a whole, and thus have more interactions with women than the average student? Maybe this explains part of the discrepancy ???

      • Posted December 7, 2018 at 4:17 pm | Permalink

        The consensus is: it’s the sense of entitlement.

  10. Ty Gardner
    Posted December 6, 2018 at 7:04 pm | Permalink

    I don’t want to oversimplify DeVos, but I think the old saying that even a broken clock is right twice a day is fitting. She got something right, or at least close, but it doesn’t suggest we should expect it to happen again soon.

  11. tomh
    Posted December 6, 2018 at 7:19 pm | Permalink

    Although DeVos defends the proposed rules as expanding the rights of the accused, which they do, the most significant parts of the proposal have nothing to do with protecting students, accused or otherwise. Instead, if allowed to go into effect, the new rules would, above all, protect schools. Public lobbying disclosures show that schools like Yale, Vanderbilt, Texas A&M and others spent tens of thousands of dollars in the last year alone, lobbying the Education Department for these changes.

    It’s all about limiting schools’ liability, first by narrowing what counts as sexual harassment. For instance, under the new definition harassment must be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to education. Another big change limits the department to holding schools accountable only when they are “deliberately indifferent” to sexual harassment. It almost seems like DeVos is more interested in shielding schools from liability than in protecting students. Shocking. Not to mention abdicating responsibility for her department to enforce Title IX violations.

    • Harrison
      Posted December 6, 2018 at 9:30 pm | Permalink

      Given that the schools’ reward for following Obama era OCR regulations has been to repeatedly lose in court and be forced to pay out huge sums to kids who were accused of sexual assault and railroaded by these policies (and the kids absolutely deserve the payday; the real shame is that some are too poor to even sue for justice in the first place), I actually don’t think it’s particularly villainous to consider their welfare as well.

  12. Kelly
    Posted December 7, 2018 at 2:32 pm | Permalink

    Here are a couple examples illustrating as to why we should not automatically believe the victim without evidence:

    1)”” A cell phone video of a white woman calling the cops on a nine-year-old black boy outside a Brooklyn convenience store went viral on social media last week. In the video, the woman—nicknamed “Cornerstore Caroline” on Twitter—claims that kid grabbed her butt while she was in line at the store.

    Now surveillance footage from inside the store has been released, and it proves that the boy did no such thing. The accusation was, without question, 100 percent false.

    I couldn’t help but notice a perceptive first comment on the writeup of this incident at The Root, a progressive news site that covers race issues. It reads: “Serious question. How do we square the idea that women don’t make false accusations and should be believed, with the fact that white women have used false accusations as weapons against black men, and black people generally throughout this country’s history?”””

    https://reason.com/blog/2018/10/15/cornerstore-caroline-false-accusation

    2) Mean Girls face lawsuit over false sex
    allegations against teen

    “”The suit alleges that the five girls — called “Mean Girls” in the suit after the 2004 Lindsay Lohan comedy — “conspired in person and via electronic communication devices to falsely accuse T.F. of sexual assault on two occasions.”””

    But in a tape-recorded interview with school officials in 2017, the suit claims K.S. the sex assault was fabricated.

    “I just don’t like him,” K.S. told officials. “I just don’t like to hear him talk. … I don’t like to look at him.”

    The interview was obtained by the boy’s lawyer, Craig Fishman. Other highlights:

    — Told pals she “would do anything to get T.F. expelled.”””

    https://torontosun.com/news/world/mean-girls-face-lawsuit-over-false-sex-allegations-against-teen

    Yes, sometimes apparent victims do lie, either out of ignorance or pure malice.

  13. Posted December 7, 2018 at 2:53 pm | Permalink

    You were happy enough to see Prof. Krauss go down under Title IX despite a lack of evidence.

    • Posted December 7, 2018 at 4:05 pm | Permalink

      Prof. Coyne was anything but happy.

    • tomh
      Posted December 7, 2018 at 4:16 pm | Permalink

      People keep saying “no evidence.” It happens that testimony is evidence, sometimes the only evidence, and usually accepted by courts.

      • Posted December 7, 2018 at 5:41 pm | Permalink

        No usually without collaborative evidence to support it.

      • Blue
        Posted December 8, 2018 at 1:36 pm | Permalink

        I quite agree with that statement, Mr tomh.

        I ‘ve had extensive experience as a litigant
        before 24 judges who were men. NOT one of
        them asked for or sought a n y
        “corroborative” evidence post testimony
        stated by one certain man. One whose
        testimony had had to it ? A bagazillion lies
        and outright errors !

        Indeed, ALL that was heard in re to that
        testimony by that one man ? Over seven
        years’ time total ?

        Thus: “The “e v i d e n c e” given before ‘this Court’ ( meaning, r e a l l y, before
        the 24 judges who were also men ), .IS.
        thus and so.

        NO ONE else’s testimony had had to have to it
        “any corroboration ” whatsoever. And ALL of that man’s was termed only as legal ” evidence ! ”

        Blue


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