Title IX changes, race and sexual assault

In Harper Lee’s Pulitzer Prize-winning novel, “To Kill a Mockingbird,” Atticus Finch, a white lawyer in a fictional southern town, is appointed to defend Tom Robinson, a black man accused of raping a young white woman, Mayella Ewell.

The book took place during the Depression and was published in 1960 at height of the civil rights movement.

Yet in both eras, the plight of Tom Robinson was not unfamiliar for men of color accused of sexual assault by a white woman. As the story progresses, we come to learn that Ewell and her father fabricated the story of the rape. But despite a bounty of evidence proving his innocence, Tom is found guilty.

I was reminded of the novel last week when Secretary of Education Betsy DeVos rescinded the Obama-era guidance that strong-armed universities into aggressively investigating and adjudicating sexual assault cases on college campuses.

The guidelines were controversial because they broadly reinterpreted Title IX to allow college administrators—not law enforcement—to review student-on-student allegations of sexual assault, and mandated that schools not only reduce the burden of proof for a finding of guilt but effectively deprive accusers of the rights to which they are entitled in a court of law.

In rescinding the guidelines, DeVos has the chance to create a regime that is fairer for all.

While many observers— including some on the political left—have agreed the guidelines were seriously flawed in their failure to protect the rights of students accused of wrongdoing, there are others who insist the accused do not deserve any such protections.

California Sen. Diane Feinstein tweeted: “Sec. DeVos is putting rights of the accused above those of sexual assault victims. Absolutely unconscionable.”

In response, editor of the National Review online Charles C.W. Cooke wrote sarcastically: “Atticus Finch is putting the rights of Tom Robinson above those of Mayella Ewell. Absolutely unconscionable.”

His allusion was spot-on, particularly as it relates to an issue that no one—especially those the political left—seem to want to talk about: the role of race in campus sexual assault.

Some proponents of the Obama-era guidelines think the so-called culture of rape on college campuses is an outgrowth of a culture of white male privilege.

Writing in The Guardian, Lucia Graves contends that “the sexually accused are overwhelmingly male, overwhelmingly white (57 percent, according to RAINN), and presumably, entitled.”

But in the final installment of her in-depth, three-part series on campus sexual assault, Emily Yoffe of The Atlantic challenges that archetype.

Yoffe reports that while there are no national statistics on how many men of any given race are the subject of campus-sexual-assault complaints, black men make up only about 6 percent of college undergraduates and are vastly overrepresented in the cases she’s tracked.

She quotes Janet Halley, a professor at Harvard Law School, as acknowledging that “the general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.”

That was made only easier by a regime that assumed their guilt and refused them an opportunity to defend themselves.

Halley contends that even at Harvard, a surprising number of assault cases have involved black male respondents.

Under the old guidelines, universities did not have the authority to convict those accused of sexual assault, so they were spared the fate of Tom Robinson to a certain degree. But school administrators still could suspend, expel or otherwise end for the accused the prospects of continuing their education. In case after case of young black student, this was their fate.

In rescinding and rewriting the guidelines, DeVos can right this wrong. She has a responsibility to make the process fairer for everyone. She also an opportunity to collect data on the racial composition of campus sexual assault cases to ensure the legacy of bias against black men accused of rape, illustrated by Lee’s novel, does not continue at our institutions of higher learning.

And instead of attacking DeVos at every opportunity, her critics might consider providing suggestions that will help protect the rights of both accuser and accused as they seek to access higher education.