It took 149 pages of quasi-incomprehensible prose to state, but the U.S. Department of Education has finally done something positive: it has issued a proposed rule on the enforcement of the Title IX statute relating to sexual assault. It is to be commended because it follows the rule of law: the Department has formally proposed something that must, according to statute, be subject to public review and comment. This is in vivid contrast to the Obama Administrations notorious 2011 guidance in sexual assault matters, which it issued without any opportunity for public comment or debate. The guidance technically had no formal legal standing, but universities treated it as if it were law. If this procedure were allowed to occur regularly, zealous government bureaucrats could drastically change the rules by which American citizens live and work, totally independent of constitutionally provided provisions of representative democracy. Therefore, independent of the content, Secretary of Education DeVoss issuance of a rule is more in keeping with constitutional principles. To be sure, a strong case can be made that we would be better off without central direction of higher education, and that the narrow approval of the Department of Education in the late 1970s was a mistake, but that is a discussion for another day.
The DOE rules say that universities are responsible for investigating sexual assault and harassment issues occurring on campus, but it appears that off-campus activity unrelated to the universitys programs should not be subject to university scrutiny. As I interpret this, a college student accused of sexually assaulting a non-student off campus during summer vacation would not usually be brought into the university disciplinary process. It is not entirely clear where the line is to be drawn between on-campus and off-campus activity, and whether geography is the prime determinant. But it appears to be a step in the direction of saying to universities that potentially bad behavior by students in settings where you have no control or remote involvement should be handled the way such cases are handled for non-university citizens, through law enforcement. I have often wondered why should university students be treated differently than anyone else, and why allegations of rape, a serious felonious law violation, should not automatically be referred to law enforcement for adjudication?
An even more important victory for fairness and adherence to Anglo-American legal traditions that predate American independence comes from the DOE saying colleges must determine the evidentiary standards to be used in sexual assault allegations, and that students must have the right to cross examine their accusers in some fashion. Under the Obama guidance rules, Washington declared (illegally in my judgment although it was never really tested definitely by the courts) that a preponderance of evidence standard should be used. If colleges were 51 % sure a student was guilty, he or she should be punished. That is completely at odds with American jurisprudence and has led to some clearly demonstrated cases of unfair and wrongful accusations made against students. I know of one largely unpublicized incident where a student was found guilty of sexual misconduct and expelled, but where later a jury would not convict him in a formal legal proceedingbut the student nonetheless committed suicide because of acute despondency arising from his life being ruined.
My prediction is many colleges will continue to use the unfair preponderance of evidence standards (which are wholly appropriate in many civil proceedings) because of a desire to be politically correct and to demonstrate we will not tolerate sexual misconduct. The same colleges, however, often invite such misconduct, in my judgement, by such practices as permitting co-ed dormitories, giving out condoms like candy to students, and tacitly tolerating illegal excessive consumption of alcohol by underage students. How often do students get punished for illegal drinking? The DOE rules should probably nudge courts into finding colleges who put political correctness above adherence to American traditions of jurisprudence liable for damages when they ruin innocent student lives. Colleges love to show how uber-progressive they are, but they love money even more. Whoremongering trumps moralizing.
No doubt the DeVos rules will lead to much invective from college officials and Members of Congress, but perhaps also lead to a needed national discussion.