‘Is it time to repeal the ‘preponderance of evidence’ rule for trying males accused of sex offenses?’

YES: Let’s restore constitutional protections on college campuses

OAKLAND, Calif. – For the radicals inhabiting the bureaucracy of American higher education, U.S. Secretary of Education Betsy DeVos is a threat.

For years, these “educrats” have built echo-chambers where speech codes, “safe spaces” and inquisitions have replaced free speech and academic freedom.

DeVos aims to change this. To the dismay of her critics, she already has withdrawn some of the most controversial Obama-era guidelines that essentially presumed the guilt of any male charged with sexual harassment.

Any day now her department is expected to release new guidelines for addressing sexual misconduct under Title IX of the Education Amendments of 1972. The tenor of the proposals telegraphed so far would be a great improvement compared to prior policy.

But so long as Title IX remains on the books, DeVos’ reforms will not be lasting. So entrenched is the tomfoolery on college campuses that no lasting change is possible so long as Title IX exists.

Enacted in 1972, Title IX is a federal statute that prohibits discrimination on the basis of sex in any federally funded education program or activity.

Title IX seeks to ensure that no federal money is used to support sex discrimination in education programs and also requires that schools take proactive measures to eliminate such discrimination.

Originally, the visible effects of Title IX were the cutting of low-revenue men’s sports such as wrestling and baseball so schools could achieve participation-parity with women’s sports.

Because football rosters typically exceed 100 players, Title IX put other men’s programs on the chopping block.

The clause requires the gender ratio of the student-athletes in a school’s athletic department to mirror the gender ratio of the school’s undergraduate student population.

Under the Obama administration, Title IX became a tool not to achieve participation-parity, but to sanction kangaroo courts and silence certain viewpoints.

In 2011, his administration promulgated Title IX guidance to eliminate “hostile environments,” defining sexual harassment as “any unwelcome conduct of a sexual nature.”

Schools were instructed to use a “preponderance of the evidence” standard in adjudicating a complaint, rather than higher standards such as “clear and convincing” evidence or beyond a reasonable doubt.

In many instances, the accuser could not be cross examined and the accused had little time to prepare a defense.

The insanity of the Title IX sanctioned witch hunts is best exemplified in the case of Laura Kipnis, a Northwestern University film professor and feminist.

She made the mistake of writing an article in the Chronicle of Higher Education criticizing Title IX regulations for creating an atmosphere of paranoia on campus.

For her efforts, she was rewarded with a Title IX investigation because students claimed that her complaints about Title IX amounted to a violation of Title IX. She was eventually exonerated by the school’s tribunal after much heartache and wasted time.

Educrats have enacted speech codes and anti-harassment policies under the claim that Title IX requires them.

These codes go far beyond matters of sex discrimination. They prohibit such things as “cultural intolerance” and “bias.” These terms are broadly defined to include speech that might be offensive or demeaning to a student’s race, gender preference or culture.

Thus a student’s or professor’s comment in class challenging affirmative action or the Supreme Court’s gay marriage decision are actionable on many college campuses.

Undoubtedly, Title IX-inspired speech codes and inquisitions stifle student speech and undermine the first principles of a free society. Americans should expect more from their universities, which are supposed to foster the exchange of ideas.

DeVos deserves applause for revoking Obama administration policies that encouraged schools to jettison due process in sexual harassment proceedings.

Despite the squawks of her opponents, DeVos does not go far enough in efforts to restore sanity to campus. She should lead a charge aimed at repealing – not simply tinkering with – Title IX.

William J. Watkins, Jr., is a research fellow at the Independent Institute, Oakland, Calif., and author, most recently, of “Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.” Readers may write him at 100 Swan Way, Oakland, CA 94621.

NO: Clause should remain in force on college campuses

 

TAMPA, Fla. – Secretary of Education Betsy DeVos has been at the forefront of trying to roll back the federal law that prohibits gender discrimination in schools that receive public funds.

Known as Title IX of the Federal Education Act, the law includes a “preponderance of evidence” clause that allows colleges and universities to convene tribunals to handle sexual offense allegations on campus rather than pass them on to local authorities.

Title IX was enhanced by the 1990 Clery Act, signed by President George H. W. Bush and named after a Lehigh University freshman who was raped and murdered in her dormitory.

Under the act, college and university administrations are required to report all campus crimes to the authorities.

Nevertheless, only about a third of campus rapes and other assaults are reported by school authorities to the off-campus authorities. And for the likes of Secretary DeVos, even this is an infringement on the rights of the accused assaulters.

Many colleges and universities rely on the preponderance of evidence clause to deal with cases of sexual assault on campus. School administrators who adopted the Title IX clause, known as the “Obama Rule,” are resisting the Trump administration’s efforts to turn back the clock to an era when such cases, depending on the political influence and deep pockets of the parents of accused students, would see local district attorneys waiving all charges after receiving a phone call from a “connected” parent or his or her high-priced attorney.

Perhaps, it should come as no surprise that DeVos should blithely dismiss the issue of sexual assaults on campuses. DeVos let it be known where she comes down on campus assaults when she selected Candice Jackson as director of her department’s Office for Civil Rights.

Jackson is on record stating that 90 percent of rape allegations on campus are dubious because they involve alcohol and damaged pre-existing relationships.

Secretary DeVos has also donated to the Foundation for Individual Rights in Education (FIRE), a non-profit group that advocates for the rights of students accused of sexual assaults on campus.

Adding to the coffers of FIRE is a Koch Brothers industry non-profit foundation, a libertarian cash mill that would like to see every law in the United States abrogated as “burdensome” on criminal individuals and corporations.

Even from someone serving in an administration led by a boorish president, who was caught on a videotape bragging about how he could get away with sexually assaulting women because of his money and fame, DeVos is out of the mainstream when it comes to the vexing issue of sexual crimes on campus.

DeVos calls the preponderance of evidence tribunals by universities and colleges “kangaroo courts.” However, in such cases, experienced external investigators are called in to help the school administration with assault cases. Under such rules, cases involving “regret sex” are usually dismissed.

States like California, Illinois and New York are codifying into state law the preponderance of evidence requirements of Title IX. State “yes means yes” laws, which require adoption of Title IX’s provisions by schools receiving state funds, are butting up against DeVos’s new interpretation of Title IX, which can be described as “no might mean yes.”

The advocacy organization End Rape on Campus has challenged DeVos’s roll back of Title IX. It has accused DeVos and the Trump administration of “tipping the scales” to favor “rapists and perpetrators.” In the #MeToo era, these advocates for vulnerable students are correct.

A graduate of the University of Mississippi, Wayne Madsen is a progressive commentator whose writings have appeared in leading American and European newspapers. Readers may write him at 415 Choo Choo Lane, Valrico, FL 33594

This article provided by NewsEdge.