On Sept. 7, Education Secretary
Betsy DeVos took on one of former
President Barack Obama’s most
controversial regulatory actions:
a set of 2011 campus disciplinary
procedures for students accused
of sexual assault. Arguing that
victims of assault were being
denied justice, the Obama White
House weakened traditional
protections for the accused, like
presumption of innocence and
the right to cross-examine an
accuser. DeVos, in a speech at
George Mason University, said the
system “is shameful, it is wholly
un-American, and it is anathema
to the system of self-governance
to which our Founders pledged
their lives over 240 years ago.”
Not surprisingly, DeVos was
immediately attacked. From
her poor performance at her
Jan. 17 nomination hearing to
her preference for charter schoolsover public education and her
Oct. 2 decision to rescind 72
policy documents on the rights
of students with disabilities,
DeVos has been a lightning rod.
The campus sexual-assault
speech was another opportunity
for opponents to strike. On a
call with activists convened in
response to her speech a day
later, former Vice President Joe
Biden weighed in. Biden, who had
been the force behind the Obama
regulations, called supporters of
the DeVos approach “culturally
Neanderthals,” and told the
activists they needed to stand up
against people like “those Nazis
marching” in Charlottesville.
Less predictable was the
support DeVos received from
other, traditionally liberal quarters.
She won cautious applause
from the editorial boards of the
WashingtonPost, the BostonGlobe andUSA Today. Even more
surprising, she is making common
cause with some respected
feminist law professors, major
organizations of lawyers and even
California Governor Jerry Brown, a
progressive Democrat. On Oct. 15,
Brown vetoed a bill designed to
perpetuate the Obama regulations
in his state, citing some “colleges’
failure to uphold due process for
accused students.”
Most important, universities
seeking to comport with the
2011 orders, which were adopted
without the usual vetting by public
notice and comment, have fared
poorly when sued. Since 2011,
accused males who say they were
wrongly punished have been on
the winning side of 69 judicial
decisions—mostly preliminary
rulings—and fewer than 50 have
lost, according to my co-author,
professor KC Johnson of Brooklyn
College, an expert on campus
due-process debates, who keeps
a tally of lawsuits by students who
say they were wrongly accused.
The Obama Administration’s
actions on campus sexual assault
were a textbook example of
regulatory overreach. In the name
of enforcing Title IX, it ordered
thousands of universities to
find an accused student guilty
even if the evidence tipped only
slightly (as by 51% to 49%)
against innocence, impose sharp
limitations on cross-examination
of accusers and adopt “training”
rules for campus courts.
After DeVos’ agency formally
rescinded the Obama mandates
with a stroke of a pen on Sept. 22,
the Education Department
announced that it would develop
detailed replacement regula-
tions for campus sexual-assault
cases, publish them, invite public
comments and then adopt final
rules, probably by next fall. In the
interim, it announced less-than-
forceful guidance for schools on
Title IX. In August, four feminist
Harvard Law School professors
wrote a joint letter to the Educa-
tion Department urging reforms
similar to those DeVos seems to
be planning. But changing things
on the ground will be a challenge
at the many campuses that are
steeped in presuming guilt.Taylor co-authored, with KC
Johnson,The Campus Rape
Frenzy: The Attack on Due
Process at America’s Universities
(Encounter Books 2017)VIEWPOINTBETSY DEVOS IS RIGHTING
GOVERNMENT OVERREACH
ON CAMPUSES
By Stuart Taylor Jr.INTERVIEW
VANESSA GRIGORIADIS
ON HER NEW BOOK
BLURRED LINES,WHICH
EXPLORES CAMPUS
RAPE AND TITLE IX
“Pretending that we can just
blow up the whole campus
court system and there’ll be
justice is another mess. I
believe we can resolve many
Americans’ hesitation about
whether the courts should
be involved in this issue if
we admit that some of the
behavior on campus may be
immoral rather than criminal.
Then it makes sense for
the campus court to come
into play, because campus
courts generally deal with
immoral behavior such as
plagiarism. This is a way of
handling episodes that involve
profound thoughtlessness.
American schools today are
interested in thinking about
this issue in this way. This is
part of why they have enacted
new sex rules on campus—
I’m specifically talking about
‘Yes Means Yes,’ the idea
that you’d have to ask for
permission for sex rather than
require a partner to say no.
I think Betsy DeVos has
called attention fairly to the
boys who may be guilty by
the letter of new campus sex
rules but not by the spirit.
There are some students
being expelled or suspended
who made some honest
mistakes, who did not get the
correct permission for sexual
intercourse—but Yes Means
Yes will take some time to get
used to if you’re a boy who
grew up in American culture
where you have movies and
TV shows and music telling
you to push as hard as you
can because girls say no
when they really mean yes.
Just throwing this new rule at
them and expecting them to
comply is pretty ambitious.
What I don’t like is that she’s
couched all of this in the
language of due process. The
way she talks about it implies
there’s nothing to see here
in terms of gender parity, and
I just don’t think that’s the
case.”—Lucy FeldmanTo read the full interview, visit
time.com/blurredlinesBETSY DEVOS DEPT. OF EDUCATIONJIM WATSON—GETTY IMAGES