The “major speech” by Department of Education Secretary Betsy DeVos began by hitting all the right notes.
We know this much to be true: one rape is one too many.
One assault is one too many.
One aggressive act of harassment is one too many.
This is the standard “do it for the children” speech that has served us so well in striking fear in our hearts so that we accept the premise that no deprivation is too harsh. But then DeVos added:
One person denied due process is one too many.
The scheme crafted by the Obama Department of Education has been sliced and diced in painful detail here over the years*, long before there was a Betsy** to hate. She called the 2011 “Dear Colleague” letter “weaponized,”
The era of “rule by letter” is over.
Through intimidation and coercion, the failed system has clearly pushed schools to overreach. With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.
And so DeVos’ big revelation was . . . that the Administrative Procedures Act would be invoked, the rule-making process required by law employed, and public notice and comment would replace bureaucratic fiat.
What DeVos’ big speech did not do, at least as yet, is rescind the “Dear Colleague” letter or replace it with a requirement that colleges not continue what has grown into a huge internal bureaucracy dedicated to engaging in an unconstitutional deprivation of due process toward those accused of some sexual impropriety.*** It is anticipated that the DoE will craft interim changes pending the conduct of lawful process for the creation of regulations, but there are no changes as yet.
And the backlash was immediate.
Former Vice President Joe Biden twitted “Any change that weakens Title IX protections will be devastating.” Democratic Senators Patty Murray and Kirsten Gillbrand, among many others, similarly pointed at the falling sky. “Survivor” advocates Know Your IX led the charge:
Today, Secretary DeVos sent the message to student and survivors across the country that the Department of Education doesn’t have their back.
We firmly believe campus discipline must be procedurally fair to both survivors and accused students – but DeVos and the Trump Administration have given us every indication their goal isn’t equality, but helping abusers and rapists avoid accountability.
Politicians, pundits and advocates, in their effort to preserve the unlawful scheme crafted by former DoE OCR undersecretary Catherine Lhamon,**** have taken to all available media to do the unthinkable: they are demonizing due process in order to preserve the outcome of “having survivors’ back” by guaranteeing that the lives of the accused are ruined.
You know campus rape is in the news when conservatives suddenly care about due process, and liberals only use the phrase with scare quotes.
But the consequences of this partisan hypocrisy run far deeper than mere snark. If clearly defined offenses, notice of accusations, right to counsel, right to cross-examine witnesses, and a fair, impartial and competent adjudicator are evils, are “disastrous” as Joe Biden says, the demonization of due process rights in the mind of the public will follow through to all accusations, to all venues. They will not stop at the edge of the campus, but will undermine constitutional rights for all accused as “helping abusers and rapists avoid accountability.”
Whether there is an epidemic of sexual misconduct on campus is a dubious proposition, but it’s not one that needs to be decided for the purpose of recognizing the breadth of this backlash. The weapon being employed to fight against the Star Chamber in place at Lhamon’s demand is the evisceration of due process as a concept. If fundamental fairness is wrong on campus, it’s wrong everywhere.
Advocates are willing to destroy due process in the name of achieving their goal of assuring that every accused is held responsible, whether innocent or not. Ironic as it may be that due process is now in the hands of Betsy DeVos, the outcome of this demonization will impact every accused. If due process is too unfair for accusers and too favorable to the accused, then this will be true for all accused, for all offenses, in all tribunals. This is the battle now being fought for the hearts and minds of the public. Is it a battle you want to lose, no matter how badly your feel for the victims of sexual misconduct?
*For an excellent recap of the disastrous application of the campus sex regimen, see Emily Yoffe’s Atlantic post. It should be noted that almost all writings take for granted that Title IX requires colleges to oversee all sex-related peer-to-peer conduct on campus. It does not. In Davis v. Monroe County Board of Education, the Supreme Court held that only conduct ” so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school” implicated Title IX protections. This has morphed at the hand of the DoE Office of Civil Rights and the persistent misinformation by advocates into control over every aspect of sexual conduct.
Unfortunately, it has become a given in the discussion, despite there being no lawful basis for the DoE’s intrusion into the minutiae of peer-to-peer relations. under the mistake contention that if there is an impropriety, there must be a law to punish it.
**There is a new hashtag campaign, #StopBetsy, created in advance of this major speech (as well as videos such as the one created by New York Gov. Andy Cuomo), anticipating that no matter DeVos had to say, it would be attacked as evil. Curiously, these campaigns use DeVos’ first name rather than last name, as would be typical for a male, reflecting an odd informality that appears to diminish her status as Secretary of Education.
***Notably, the language employed ranges from “rape” to “sexual harassment,” but these words and their underlying conduct have become untethered from any cognizable definition. As DeVos noted, “if everything is harassment, nothing is harassment.” The campus rule is that offenses are defined by the feelings of the “survivor,” such that consensual sex at the time can be deemed rape because of a change of heart after the fact, or unwanted sexual attention constitute an offense not because of the conduct involved, but because the recipient of the conduct, or an onlooker who observed the conduct, decided it was undesired or appeared inappropriate.
****Lhamon, who was appointed as Chair of the United States Civil Rights Commission by President Obama in a 12th hour shift, twitted in response to DeVos’ speech “Title IX is still the law & we will protect rights.” While Title IX is the law, her scheme is not, and never was, the law, but rather an unlawful imposition of regulations upon threat to colleges of losing federal funding for failure to adopt her radical rules designed to fundamentally deny males due process in campus disciplinary proceedings.