By David French
Tuesday, October 17, 2017
Concern over Title IX abuse is now officially,
unequivocally bipartisan.
Yesterday, California governor Jerry Brown — arguably the
nation’s most powerful leader of the #Resistance — vetoed a state bill that
would have imposed constitutionally suspect Obama-era Title IX guidance on
California public schools, mandating that they satisfy the lowest burden of
proof in sexual-harassment and sexual-assault adjudications, defining sexual
harassment far too broadly, and failing to adequately protect fundamental
due-process rights.
Brown’s veto message was remarkable. After noting that
he’d already signed an “affirmative consent” bill into law, he said this:
Since this law was enacted,
however, thoughtful legal minds have increasingly questioned whether federal
and state actions to prevent and redress sexual harassment and assault —
well-intentioned as they are — have also unintentionally resulted in some
colleges’ failure to uphold due process for accused students. Depriving any
student of higher education opportunities should not be done lightly, or out of
fear of losing state or federal funding.
Brown is exactly right. In fact, universities have faced
dozens of adverse court rulings, from judges across the ideological spectrum,
holding that they have denied due process to accused students. Thoughtful
professors, again from across the ideological spectrum, have signed open
letters condemning the lack of due process in campus sexual-assault
adjudications. Indeed, the progressive dissent from Obama’s policies is so
pronounced that a Boston Globe
headline recently asked, “Why are some feminists siding with Trump on sexual
assault policy?”
The answer is that these feminists care about the
Constitution. They understand that a person can condemn sexual assault and
vigorously investigate and prosecute misconduct without creating kangaroo courts.
Brown, however, wasn’t done. He then went even farther,
pinpointing what may well be the Achilles heel of the radical rush to judgment
in campus sexual-assault cases:
Given the strong state of our laws
already, I am not prepared to codify additional requirements in reaction to a
shifting federal landscape, when we haven’t yet ascertained the full impact of
what we recently enacted. We have no insight into how many formal
investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact
on race or ethnicity. [Emphasis added.]
“It is time to pause and survey the land,” he concludes,
and again he is exactly right. The
Atlantic’s Emily Yoffe recently wrote that the racial impact of aggressive
Title IX adjudications is largely unknown, which is especially curious given
the race-obsessed state of American campuses:
How race plays into the issue of
campus sexual assault is almost completely unacknowledged by the government.
While the Office for Civil Rights (OCR), which regulates how colleges respond
to sexual assault, collects a lot of data on race, it does not require colleges
and universities to document the race of the accused and accuser in
sexual-assault complaints. An OCR investigator told me last year that people at
the agency were aware of race as an issue in Title IX cases, but was concerned
that it’s “not more of a concern. No one’s tracking it.”
While there has been no systematic effort to track the
racial effect of Obama’s policies, the anecdotal evidence is hardly
encouraging. As Yoffe notes, there is also deep concern that a number of
controversial cases involve troubling interracial echoes, where white women
accuse black men of assault in (here she quotes Harvard law professor Janet
Halley) “morning-after remorse.”
So, to review: The Obama administration enacted Title IX
guidelines so extreme that even Jerry Brown balks at reimposing them on his own
state schools, and these same guidelines may well impose a disproportionate
burden on black male students. Yet at least 29 Democratic senators and
countless campus activists from coast to coast are unmoved. They continue to
believe that the sexual-assault crisis on campus is so grave that
constitutional due-process protections must be ignored in the interest of
convicting more accused students.
These politicians and activists ignore adverse court
rulings, they wave away their own friends’ and allies’ objections, and they
focus on education secretary Betsy DeVos as the villain in a sadly simplistic
on-campus morality play.
Governor Brown has done the nation an immense favor. He’s
reminded Americans that defense of the Constitution is and should be a nonpartisan
enterprise, and he’s shown that powerful Democrats can break with their base in
the interests of justice. Betsy DeVos is right to lead the way on Title IX
reform. Progressive civil libertarians are right to shed the tribalism of these
polarized times and offer a principled defense of the Constitution. There is,
at long last, hope for positive constitutional change on campus.
Now, the ball is in DeVos’s court. She’ll soon submit for
public comment new regulations designed to combat sexual assault without
violating the constitution. Will the shaky coalition backing those regulations
hold? We won’t have to wait long to find out.
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