Editorial roundup

Nov. 20

The Wall Street Journal

Sexual abuse on campus

For those awaiting a restoration of rational discourse in American politics, well, you’ll have to keep waiting. No other conclusion is possible after seeing the reaction to Education Secretary Betsy DeVos’s long-awaited regulatory proposals last week on handling accusations of sexual abuse on campus.

From California Democrat Maxine Waters: “Betsy DeVos, you won’t get away with what you are doing. We are organizing to put an end to your destruction of civil rights protections for students.”

Former Vice President Joe Biden said on Facebook that the proposal “would return us to the days when schools swept rape and assault under the rug and survivors were shamed into silence.”

The centerpiece of the proposed regulations is — hold your fire — restoring the right of cross-examination, one of the oldest and most hallowed elements of due process.

The Obama Department of Education, responding to legitimate concerns about sexual abuse on campus, issued guidelines that went overboard, casting away many basic protections for the accused. The result has subjected victims and the accused to a system of campus justice often controlled by amateurs and political activists.

For more than four decades the Department of Education has set Title IX policy by issuing “guidance,” which circumvents the normal rule-making process. The Obamaera sexual abuse guidance was essentially an administrative diktat. The public had no chance to comment, and universities, which understood federal funding was at risk, opted to dilute standard legal protections for accused students.

Secretary DeVos has instead followed normal rule-making to create a balance between protecting victims and the rights of the accused. The proposals include “the right of every survivor to be taken seriously and the right of every person accused to know that guilt is not predetermined.” Both the alleged victim and the accused would be able to inspect and review all evidence.

All Title IX hearings would include cross-examination, which could occur in-person or by livestream, with campus adjudicators allowed to observe the demeanor of witnesses as they assess credibility. The statements of anyone who refuses cross-examination could not be considered in the final determination. Title IX judges would be required to consider both inculpatory and exculpatory evidence.

The proposed rule acknowledges how schools’ “treatment of both complainant and respondent could constitute discrimination on the basis of sex.” Both the alleged victim and the accused would enjoy the same opportunities for appeal, and, if both parties agreed, administrators could offer informal resolution processes like mediation.

One troubling aspect remains. Universities could still use a weaker “preponderance of evidence” as the standard of proof, similar to civil cases, rather than a higher “clear and convincing evidence” standard. Ms. DeVos mitigates this somewhat by barring universities from using this lower standard for only sexual assault or harassment if they rely on a higher standard for comparable disciplinary cases.

This is an attempt at compromise, but Mrs. DeVos will get no credit from the Democratic Party’s identity-politics police. Their standard now is essentially that the accused must prove his innocence no matter the lack of evidence against him, as we learned during the Senate’s Brett Kavanaugh crucible.

The proposed protections are nonetheless progress, and would go a long way to restore basic norms of fairness and justice to campus courts.