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Attorneys general criticize DeVos for reconsidering Obama guidance that diminished their authority

Conflating allegations with adjudications

When the Obama administration released legally nonbinding guidance six years ago on how colleges should run sexual-misconduct investigations, the practical effect was to block law enforcement from the process.

So it’s a little strange that 20 state attorneys general are criticizing Education Secretary Betsy DeVos* for reconsidering that “Dear Colleague” letter, with one possible result that their offices take a greater role in investigating alleged felonies on campus.

In a Wednesday letter to DeVos, the top law enforcement officials – mostly from blue states – argue that anyone who makes a rape allegation is a “survivor” and misconstrue research on the pervasiveness of campus sexual assault.

Not only do they fail to note methodological problems with opt-in surveys disproportionately answered by female respondents, but they incorrectly say the surveys show that a quarter to a fifth of college women “were the victims” of sexual misconduct.

The surveys asked women about their allegations – they don’t serve as final adjudications of sexual misconduct. Only courts can do that. You’d think attorneys general would know this. (President Obama, a constitutional law lecturer, doesn’t either.)

MORE: UMich students don’t think their ‘nonconsensual’ sex is rape

They also see allegedly low reporting rates for sexual assault as evidence that far more women are victimized than we think, rather than evidence that women don’t necessarily see themselves as victims of these interactions:

Thanks to the tireless work of survivors and advocates, our nation is beginning to
understand the full scope of this epidemic. The Department of Education’s current guidance reaffirms the obligation of colleges and universities to protect survivors of sexual assault.

The AGs also claim without citing evidence that the department under DeVos is leading a “rushed, poorly-considered effort to roll back current policies” that have no force of law, which “sends precisely the wrong message to all students.” DeVos has met with a broader range of stakeholders than the Obama administration’s last chief of the Office for Civil Rights.

They have “serious concerns” about the acting chief of OCR taking sexual-assault investigations seriously because Candice Jackson told field staff to investigate submitted complaints and not look for “systemic problems” when they aren’t suggested by the complaints.

MORE: Investigate real complaints, not mythical ones, new OCR chief says

The Wall Street Journal editorial board today defends DeVos from criticism by interests that favored the previous administration’s view of Title IX.

It notes that critics from Democratic Sen. Bob Casey to rape-culture activist Jessica Valenti are mad that DeVos met with students who say they were falsely accused, instead of relying on department policy that was never subject to regulatory review:

That same [2011] Dear Colleague letter also “strongly discourages” cross examination, which it says “may be traumatic or intimidating” to alleged victims. The accused frequently lack legal counsel and have often been prevented from presenting exculpatory evidence. Even when students are initially found not guilty, their accusers can appeal the decision. Meanwhile, the Title IX adjudicators who make life-changing determinations sometimes have as little as five hours of training. …

Sexual assault charges deserve to be investigated, but liberal academia is using Title IX to silence ideological opponents, often complaining that peaceful dissent constitutes actionable harassment on the basis of gender or sexual orientation. Mrs. DeVos is right to revisit the Obama-era guidance that has turned the law into an ideological weapon, and part of that is learning from its victims.

Read the attorneys general letter and WSJ editorial.

*Disclosure

MORE: Top Senate Republican vows to end ‘unchecked’ Office for Civil Rights

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About the Author
Associate Editor
Greg Piper served as associate editor of The College Fix from 2014 to 2021.