What's Next on Title IX?

Title IX is a Nixon-era federal law barring sex discrimination in schools. Under the Obama administration, it became a mandate for colleges to adjudicate claims of sexual misconduct with an imbalanced extrajudicial standard. The Department of Education’s infamous “Dear Colleague Letter” of April 2011 was a savvy play for progressive voters as the president began his reelection campaign. The standard it set requires only a “preponderance of evidence” for finding guilt—a far lower threshold than the criminal code’s “beyond a reasonable doubt.” Universities suddenly had a far freer hand.

The public awareness campaign that accompanied the new guidelines—recall Joe Biden’s “1 is 2 many” campaign—hinged on the statistic that one in five women is sexually assaulted while in college. As THE WEEKLY STANDARD reported earlier this year, the very same social scientists who are responsible for those survey data say their results have been misleadingly manipulated by the news media and politicians.

Education Secretary Betsy DeVos is rightly considering rescinding the preponderance standard and replacing it with a stricter standard of proof. Predictably, this has provoked an angry response. In a New York Times op-ed, the victims' advocate Laura Dunn and the writer Jon Krakauer unapologetically defended a system that suspends and expels students deemed probably guilty of assault and conceded that it depends on the rejection of the presumption of innocence. “Not only must the prosecution prove guilt beyond a reasonable doubt,” they wrote, “but the defendant is presumed at trial to be innocent—which encourages scrutiny of the accuser, who is inevitably portrayed by the defense as the one who’s really to blame.”

Fans of due process and the rule of law have discerned the problem. Harvard law professor Janet Halley, who investigated sexual misconduct claims as an administrator at Stanford, believes impartial truth-seeking is nearly impossible under the new rules. “We are overcorrecting,” she says. “The procedures that are being adopted are taking us back to pre-Magna Carta, pre-due process procedures.” And treating university women simply as “damsels in distress” causes a similar kind of distress. Joan Howarth, a law school dean from Michigan State, similarly points out that, under her university’s current policy, a student who leans over and steals a kiss in the library could easily be found guilty of sexual assault—regardless of the students’ relationship.

Emily Renda, a younger victimhood-skeptic, was project coordinator for sexual-assault prevention at the University of Virginia when she met “Jackie”—the student whose account of a frat house gang rape (later discredited) was used by Rolling Stone’s Sabrina Rubin Erdely as proof of rape culture. (Erdely’s 2014 article “A Rape on Campus” is a case study for how narrative activism obscures truth; the reportorial miscarriage also cost the magazine millions in multiple defamation suits.) Renda told Vanity Fair the following year that, before its falsehoods became a national controversy, the article and the ensuing anti-rape-culture protests on campus struck her as woefully counterproductive—in part because “there were no women of agency,” only victims, in Erderly’s narrative.