At the beginning of September, the U.S. Sixth Circuit Court of Appeals reversed a lower court’s decision in the case of Doe v. Baum, et al. , in which a University of Michigan student accused of rape said his rights had been violated by the school because it did not allow him to cross-examine his accuser. The ruling, written by U.S. Circuit Judge Amul Thapar, stated:
Today, we reiterate that holding once again: if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.
The ramifications of this ruling are now about to be felt across the country, as the Washington Post reports that Education Secretary Betsy DeVos plans on releasing a “sweeping overhaul of how colleges and universities must handle allegations of sexual assault and harassment.” The Post says that, piggy-backing on the ruling, DeVos plans on expanding the rights of the accused, using some pretty terrible practices to do so.
Some White House officials urged going further to include a mandatory cross-examination provision, two people familiar with internal discussions said. They said others in the administration argued that mandatory questioning was ill-advised, potentially traumatic for victims and not required in court hearings. [Emphasis added.]
But before you think DeVos and the Trump administration are monsters, there’s this:
The proposal will include language barring questioning about an accuser’s sexual history, one administration official said.
It’s like this administration is run by 1,000,000 Mother Teresas! Many advocacy groups have already been working against these changes, including with a lawsuit that argues DeVos’ rewriting of these laws amounts to creating a discriminatory policy nullifying the entire point of Title IX in the first place. It has been very clear for some time that DeVos’ mandate, beyond trying to allow Trump-University-type predatory loan scams to thrive, is to limit the liabilities that universities face in not doing their best to create physically safe environments for their students.
The Post says that, along with allowing accused students the chance to needlessly cross-examine the people accusing them, the new guidelines would allow schools to raise the bar for accusers, from the Obama-era guideline of “a preponderance of evidence” to “clear and convincing” evidence. And while this is supposedly offered as a choice to the schools, it comes with the charge that they must not have a lower bar for students than they have for faculty and staff—which means they will most likely be forced to lift the standard regardless.
Lastly, the liability that schools have with regard to their investigations of assault claims is reportedly loosened up by these new guidelines. Schools need not worry if only a professor or a resident adviser is told about an alleged assault by an accuser: The school would be able to sidestep liability for not investigating such reported assaults if they were not then informed. The loophole in DeVos’ guidelines here would be that only members of the school who had the ability to “institute corrective measures” would be compelled to act.
Donald Trump offered up some chum to his rabidly racist and misogynistic base last month, saying that “it’s a scary time for young men in America.” Betsy DeVos is playing to this false narrative at the expense of the real victims.
This is a Creative Commons article. The original version of this article appeared here.