BishopAccountability.org
 
 

Trump Overhaul of Campus Sex Assault Rules Wins Surprising Support

By Michael Powell
New York Times
June 25, 2020

https://www.nytimes.com/2020/06/25/us/college-sex-assault-rules.html

Prof. Janet Halley of Harvard Law School is among the feminist legal scholars who have applauded new Trump administration rules that they see as fairer to those accused of sexual misconduct on college campuses.

Education Secretary Betsy DeVos fired a shot last month in the nation’s culture wars, overhauling how colleges handle investigations of sexual assault and ending what she called Obama-era “kangaroo courts” on campus.

The new Education Department rules give more protections to the accused, primarily young men who face discipline or expulsion as a result of allegations of sexual misconduct.

The move set off a liberal uproar, denounced by unions representing teachers and college professors, by the National Organization for Women and by an array of Democratic senators. The Trump rules, they said, constitute a radical rollback of protections for victims who seek justice after sexual assaults.

But Ms. DeVos’s actions won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused.

“The new system is vastly better and fairer,” said Prof. Janet Halley, who specializes in gender and sexuality at Harvard Law School. “The fact that we’re getting good things from the Trump administration is confusing, but isn’t it better than an unbroken avalanche of bad things?”

There are few more contested cultural battlegrounds than college campuses and the rules that govern sexual misconduct and due process, and thorny questions of how to define sexual consent.

Most often this battle is framed as Left versus Right, feminist against traditionalist. But that is to miss a fierce and complicated struggle within feminist and liberal circles. Several colleagues who teach and write on gender and the law have joined Professor Halley in donning the cloth of heretics.

“I’m a feminist, but I’m also a defense attorney who recognizes the importance of due process,” said Prof. Nancy Gertner, a retired federal judge and lecturer in law at Harvard, who opposed the Obama-era rules. “These are fences I’ve straddled all my life.”

The battle began in April 2011 when the Obama administration sent a letter to 4,600 colleges and universities, directing changes to Title IX, the 1973 law that prohibits sex discrimination in education. There was an urgent need to act: Recent decades had offered too many examples of college administrators and professors who shrugged off complaints of sexual violence as kids will be kids.

The Obama administration directives created a system centered on the person making the complaint. They discouraged universities from giving the accused the right to question accusers or to learn the identity of witnesses. In some cases, the accused could not see the full evidence against them. The rules defined sexual harassment broadly as “any unwelcome conduct of a sexual nature.”

Perhaps most controversially, Obama officials encouraged universities to appoint a single official who acted as detective, prosecutor, judge and jury. And they set a lower bar to determine guilt, changing from “clear and convincing” to “more likely than not,” known colloquially in legal circles as the “50 percent plus a feather” test.

Advocates applauded the directives as sensitive to the trauma of victims and a righting of the scales of justice. But Professor Halley and like-minded scholars viewed these rules as dangerous overreach, encouraging an arbitrary and unfair system.

Supporting the Trump administration’s revamping of the rules comes laden with risk, as more than a few liberal critics accuse these feminists of having lost their way. Yet some of the strongest female voices in legal circles occupy this hill of dissent.

Justice Ruth Bader Ginsburg has said in speeches and interviews that the Obama-era regulations deny due process and a fair hearing to the accused. Nadine Strossen, a past president of the American Civil Liberties Union, said on a National Review podcast that the new regulations from Ms. DeVos represented “a step forward in due process for everybody.”

Ms. Strossen’s former organization, the A.C.L.U., takes a different view and has filed suit to block the Trump regulations. Ria Tabacco Mar, director of the organization’s Women’s Rights Project, said that about one-third of the cases currently investigated under Title IX would not qualify for consideration under the new standards. The Trump administration rules, for example, would require colleges to investigate only incidents said to have occurred within dorms and university buildings or in fraternities and sororities, and not in private off-campus and overseas apartments.

“This is a dramatic break with the Obama era,” Ms. Tabacco Mar said of the DeVos changes. “It codifies the historical skepticism of institutions as applied to rape.”

The precise number of women assaulted on college campuses is itself a subject of debate. Advocates point to federal surveys suggesting that one in five female students have experienced assault while in college, which amounts to about 400,000 students. Even accounting for a likely high rate of underreporting, however, the Federal Clery Act, which requires colleges and universities to report crimes on campuses, reported far fewer rapes, with 8,529 in 2018. A separate Justice Department study from 2013 found nearly 28,000 students had reported rapes, attempted rapes and assaults.

Professor Halley, the first gender and sexuality theorist to get tenure at Harvard Law School, has long been a woman willing to stick a dissenting head into a lion cage of liberal orthodoxy. Too many feminists, in her view, have abandoned liberating freedoms for the allure of governmental power and punishment. As she puts it, these activists have traded the megaphone for the gavel.

Jeannie Suk Gersen and her husband, Jacob E. Gersen, also Harvard professors, have joined in the critique of Title IX. They wrote a law review article critiquing the creation of a federal “sex bureaucracy,” which they said leveraged “sexual violence and harassment policy to regulate ordinary sex.” Professor Suk Gersen’s assessment of the DeVos changes appeared in The New Yorker.

The Obama-era policy on Title IX not only incited intense debate; it also set off a flurry of legal challenges.

It was once vanishingly rare for students accused of sexual misconduct to challenge their universities. But for several years now, such students have filed lawsuits arguing lack of due process at a rate of twice a week, according to Professor KC Johnson at Brooklyn College, a critic of Title IX regulations who monitors such legal challenges. And federal judges have found that regulations trampled on the constitutional rights of students. To cite two examples:

In one case, two gay freshmen at Brandeis College fell into a romantic relationship that lasted nearly two years. They broke up and, six months later, one student accused the other of sexual misconduct, including looking at his private parts while they took showers and kissing him while he was asleep. Brandeis’s examiner did not tell the accused student of the nature of the charges and denied him a chance to question witnesses.

The student was found guilty of “sexual violence.”

In 2016, a federal judge allowed that student to sue Brandeis, observing tartly: “If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself.” The accused student eventually dropped the case.

Prof. Nancy Gertner, a retired federal judge and lecturer at Harvard, said she opposed Obama-era rules around sexual misconduct on campus because she “recognizes the importance of due process.”

In another case, a football player at Michigan State, Keith Mumphery, used an online app in 2015 to hook up with a female student for sex. The other student later accused Mr. Mumphery of sexual assault; the police and the university’s Title IX office examined Mr. Mumphery’s text messages, took a DNA swab and talked to nurses, and cleared him.

After he graduated and entered the National Football League, the female student appealed that verdict with Michigan State, and Title IX officials reopened the case. Mr. Mumphery knew nothing of this. He was found guilty of sexual assault, and when the decision became public, the Houston Texans football team cut him loose.

Two years later, after a protracted legal battle, Michigan State wiped Mr. Mumphery’s record clean and paid him an undisclosed sum of money. But his N.F.L. career apparently is over.

Professor Halley experienced her own epiphany on these questions years ago: She had a female colleague, she said, who lodged complaints against several male faculty members. Ms. Halley and other professors believed her at first, before coming to doubt her allegations.

“We feminists were surprised; we assumed no woman would step forward without wrongdoing,” she said. “It was all about our acceptance of prevailing dogma.”

That understanding has informed her view of the Obama-era Title IX regulations. Sexual desire, to her view, is messy and idiosyncratic and laden with ambivalence, and it is folly to think that institutions can sort campuses into a regulated world of victims and perpetrators.

To their critics, Professor Halley and her colleagues want nothing more than to topple the pillars upholding critical feminist reforms. Prof. Lama Abu-Odeh at Georgetown described Ms. Halley in a 2018 essay as a sexual libertarian who used a “cunning bullishness” to pursue an anti-feminist deregulation of sexual harassment.

After he graduated and entered the National Football League, the female student appealed that verdict with Michigan State, and Title IX officials reopened the case. Mr. Mumphery knew nothing of this. He was found guilty of sexual assault, and when the decision became public, the Houston Texans football team cut him loose.

Two years later, after a protracted legal battle, Michigan State wiped Mr. Mumphery’s record clean and paid him an undisclosed sum of money. But his N.F.L. career apparently is over.

Professor Halley experienced her own epiphany on these questions years ago: She had a female colleague, she said, who lodged complaints against several male faculty members. Ms. Halley and other professors believed her at first, before coming to doubt her allegations.

“We feminists were surprised; we assumed no woman would step forward without wrongdoing,” she said. “It was all about our acceptance of prevailing dogma.”

That understanding has informed her view of the Obama-era Title IX regulations. Sexual desire, to her view, is messy and idiosyncratic and laden with ambivalence, and it is folly to think that institutions can sort campuses into a regulated world of victims and perpetrators.

To their critics, Professor Halley and her colleagues want nothing more than to topple the pillars upholding critical feminist reforms. Prof. Lama Abu-Odeh at Georgetown described Ms. Halley in a 2018 essay as a sexual libertarian who used a “cunning bullishness” to pursue an anti-feminist deregulation of sexual harassment.

 

 

 

 

 




.

 
 

Any original material on these pages is copyright © BishopAccountability.org 2004. Reproduce freely with attribution.