Politics & Policy

Can We Finally Agree That Betsy DeVos Isn’t a Rape Apologist?

DeVos at her confirmation hearings on Capitol Hill in January. (Reuters photo: Yuri Gripas)
No less a progressive luminary than Governor Jerry Brown now agrees with her about Obama’s overreaching Title IX guidelines for campus sexual-assault cases.

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.

READ MORE:

NR Editorial: DeVos Takes on Lawless Campus Tribunals

DeVos’s Critics Rely on Junk Science and Sheer Malice

Betsy DeVos vs. the Mindless Mob at Harvard

Most Popular

Media

Martha McSally’s Blasphemy

As I note in my New York Post piece today, I don’t believe that Martha McSally, who is serving her first term in the Senate after being appointed to take John McCain’s seat, is going to be helped much by accusing CNN’s Manu Raju of being a “hack.” Attacking the press might be an effective way to excite ... Read More
Media

Martha McSally’s Blasphemy

As I note in my New York Post piece today, I don’t believe that Martha McSally, who is serving her first term in the Senate after being appointed to take John McCain’s seat, is going to be helped much by accusing CNN’s Manu Raju of being a “hack.” Attacking the press might be an effective way to excite ... Read More

People Make New Orleans

I had my first taste of southern hospitality the day I moved to New York. A young woman from New Orleans, whom I had met only briefly over Skype (she had advertised a room in the Bronx, though I preferred a room in Manhattan), had asked if anyone would be picking me up from the airport. No, I told her. I didn’t ... Read More

People Make New Orleans

I had my first taste of southern hospitality the day I moved to New York. A young woman from New Orleans, whom I had met only briefly over Skype (she had advertised a room in the Bronx, though I preferred a room in Manhattan), had asked if anyone would be picking me up from the airport. No, I told her. I didn’t ... Read More
Elections

Lying Liz

Ever since she began explaining how her Medicare for all plan would be funded, and how she would pass it, Elizabeth Warren has been sinking. Ahead of last week’s debate, her camp leaked a story that her friend Bernie Sanders met with her in 2018 to discuss plans for 2020, and that at this meeting, Sanders had ... Read More
Elections

Lying Liz

Ever since she began explaining how her Medicare for all plan would be funded, and how she would pass it, Elizabeth Warren has been sinking. Ahead of last week’s debate, her camp leaked a story that her friend Bernie Sanders met with her in 2018 to discuss plans for 2020, and that at this meeting, Sanders had ... Read More
Health Care

‘Reconsidering Fetal Pain’

Two researchers with “divergent views regarding the morality of abortion” have published a paper in the Journal of Medical Ethics concluding that unborn human beings likely are able to feel pain at an earlier point than previous research has suggested. The authors state that they “came together to write ... Read More
Health Care

‘Reconsidering Fetal Pain’

Two researchers with “divergent views regarding the morality of abortion” have published a paper in the Journal of Medical Ethics concluding that unborn human beings likely are able to feel pain at an earlier point than previous research has suggested. The authors state that they “came together to write ... Read More