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.
Governor Brown has done the nation an immense favor.
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.