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United States: Sexual harassment law revoked

Any sentence containing the phrases “Donald Trump” and “campus sexual assault” could reasonably be expected to conclude with the word “outrage”. Yet when President Trump’s secretary of education, Betsy DeVos, announced her intention to “revoke or rescind” directives to universities on handling sexual assault issued by the Obama administration, the move was quietly welcomed by a large number of colleges. The Obama administration’s determination to discourage campus sexual assault — suffered by as many as a fifth of women attending college — was well-intentioned but poorly thought out.

In 2011 the Office of Civil Rights (OCR) sent a “Dear Colleague” letter — named after its misleadingly congenial salutation — which issued a sweeping reinterpretation of Title IX, a federal law prohibiting gender discrimination. The letter urged universities to investigate sexual assaults and conduct hearings assessed on a lower standard of proof, requiring just a “preponderance of the evidence”, or 51 percent certainty of guilt. Universities were discouraged from using a tougher “clear and convincing” standard because this was judged to be “not equitable”. Because the OCR letter was sent without time for notice and comment — steps that DeVos is rightly taking in revising the policies now — the letter lacked the force of law. Still, colleges were cowed into compliance after the OCR threatened to cut off federal funding to offending institutions.

Opposition to the Obama-era policies isn’t just a cause for dubious men’s rights activists or alt-right agitators. The most prominent critics have been the faculty of Harvard Law School, who publicly broke away from Harvard University’s new sexual-assault procedures (which they said lacked “the most basic elements of fairness and due process”) and established their own. They pointed to the improper role of Title IX compliance officers, a newly sprouted type of academic bureaucrat, who often act as investigator, judge, jury and appeals board all at once. Some officers advise the accusers, making them far from neutral. In some colleges, the accused aren’t given complaints, and aren’t allowed to address the evidence gathered against them. Other colleges skip hearings altogether, issuing summary judgements after an investigation.

Stories of malpractice at these courts abound. The University of Southern California launched an investigation and eventually expelled one student after he was accused of abusing his girlfriend, despite her vehement denials. A federal judge excoriated Brandeis University for its handling of an investigation filed after two male students, called John and JC in court proceedings, broke up after a two-year relationship. JC contended in a complaint to university officials that during their relationship, John would wake him up by kissing him, even when JC wanted to sleep. The university special examiner concluded that the events constituted “sexual violence”, and a note was made in John’s permanent record. The possibility of racial bias also haunts the proceedings. Observers have noted that black men make up a disproportionate share of the accused.

Those who want to keep the Obama-era guidelines in place paint the issue as a zero-sum contest between the victims and the accused. They point to decades in which women who had claimed sexual harassment were not believed, and the chronic underreporting resulting from this. But the antidote to that history is not to punish the innocent and the guilty alike. 

 

(Excerpted and adapted from The Economist and Times Higher Education)

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