Defenders of due process and fairness on campus have a “valuable opportunity” to reform “the embarrassingly minimal standards of campus courts” imposed by the Obama administration, according to a Wall Street Journal op-ed.
Robert Shibley, executive director of the Foundation for Individual Rights in Education, lays out a blueprint for the incoming Trump administration to restore a credible reading of Title IX and follow Supreme Court precedent on what qualifies as “harassment” in education.
“Confidence in the system is low for very good reason,” he says, referring to campus adjudication rules mandated by the federal Office for Civil Rights, particularly the “more likely than not” evidence standard:
Given that campus courts routinely deny students counsel, the right to face their accusers, access to evidence, and even the presumption of innocence, this [2011 OCR] mandate banned what was often a student’s only meaningful due-process protection: that fact-finders be more than just barely persuaded of their guilt. …
The OCR’s debased definition of harassment [in which even overheard dirty jokes are punishable], meanwhile, has led to absurdities such as a feminist professor being investigated for criticizing Northwestern University’s Title IX efforts in a newspaper column.
Shibley tells President-elect Donald Trump exactly how to fix the low-hanging fruit: eliminate the mandatory “preponderance” evidence standard, and use the Supreme Court’s more-exacting Davis standard for “peer sexual harassment,” which Obama’s OCR falsely claims to be observing. Neither is enshrined in legally binding regulation.
Beyond that, go through Congress! he says:
Since 2011, defenders of the embarrassingly minimal standards of campus courts have argued that they are sufficient because schools find a student “responsible” for rape rather than “guilty” of it. Yet the ultimate determination being made—did the assault happen or not?—is exactly the same.