Democrat AGs Sue to Block Due Process for Students Accused of Campus Sexual Misconduct

Man and woman's partial faces as they are seen smiling through books at a library.
Unsplash/Josh Felise
Dr. Susan Berry

A coalition of Democrat attorneys general filed a federal lawsuit Thursday to block the Trump Education Department’s new rule that requires due process for those accused of campus sexual misconduct.

Led by Attorneys General Xavier Becerra (CA), Josh Shapiro (PA), and Gurbir Grewal (NJ), the Democrats claim the new Title IX rule, which seeks to “balance the scales of justice” in specifying how schools must handle allegations of sexual misconduct, will undermine the rule’s purpose of preventing sex discrimination:

“If the Rule is permitted to take effect, students across the country will return to school in the fall with less protection from sexual harassment,” claims the lawsuit that was filed in U.S. District Court for the District of Columbia. “The Rule will reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education—a commitment that, until now, has been shared by Congress and the Executive Branch across multiple elections and administrations, as well as by state and local officials and school administrators.”

The lawsuit adds:

The Rule creates substantive and procedural barriers to schools’ investigation and adjudication of sexual harassment complaints, and discourages students and others from making sexual harassment complaints. As a result, fewer sexual harassment complaints will be filed, and schools will be less well equipped to protect their students’ safety and rid their programs and activities of the pernicious effects of sex discrimination:

“Title IX’s mandate is simple: Our schools must give women and men equal access to education, which means no one should experience sexual harassment,” Shapiro said, according to U.S. News & World Report. “But instead of making it easier for students to report, and for schools to respond, to sexual harassment, Secretary DeVos has unlawfully narrowed Title IX’s reach”:

However, U.S. Education Secretary Betsy DeVos said in an interview in May on SiriusXM’s Breitbart News Daily that the new rule is a win for both alleged victims of sexual misconduct and the accused.

Some of the new features of the rule include spelling out alleged victims’ right to supportive services, such as class or dorm changes, and an option to file a formal complaint.

Those accused of sexual misconduct will not be presumed guilty, according to the new rule. They will be entitled to written notice of allegations, the right to an advocate, and the right to cross-examination, which had been denied them in the past.

The rule also specifies how schools that receive federal financial aid are required to respond to allegations of sexual misconduct.

Many Democrats and feminist groups used the already debunked Obama-era “1 in 5” statistic to urge opposition to the proposed rule. The stat refers to the notion that “one in five women experience sexual assault or attempted assault while in college.”

However, that indicator — spread widely by the Obama administration through its Centers for Disease Control and Prevention (CDC) and used in multiple sexual harassment courses required of college students throughout the nation  — is “wildly at odds with the official crime statistics,” said American Enterprise Institute (AEI) resident scholar and former philosophy professor Christina Hoff Sommers.

According to the Bureau of Justice Statistics, a division of the Department of Justice (DOJ), the actual rate of sexual assault on college campuses, is 6.1 per 1,000 students, or .03 per 5. The rate of rape and sexual assault for nonstudents is actually 1.2 times higher than for students — 7.6 per 1,000.

“Where did the CDC find more than a million and nearly 14 million victims of sexual violence that professional criminologists somehow overlooked?” Sommers asked. “It found them by using a poorly constructed telephone survey with a low response rate and a non-representative sample of respondents. No one interviewed was asked if they had been raped or sexually assaulted.”

Armed with the false “1 in 5” statistic, however, the Obama administration threatened to cut funding to colleges and universities that did not implement its policy.

The Obama administration also instructed colleges and universities to use the lesser “preponderance of evidence” standard to resolve allegations of sexual misconduct, rather than the higher “clear and convincing evidence” standard.

DeVos observed three federal courts have determined students accused of sexual misconduct were not provided with due process in the cases decided on campus.

For example, in June 2019, Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit in Chicago led a unanimous, all-women panel of judges in reversing a lower court’s decision to dismiss a college student’s claim that his right to due process was not honored and that he was discriminated against because of his sex in a campus sex assault investigation.

In her decision in Doe v. Purdue University, Barrett, a President Trump appointee, observed “John Doe” had “adequately alleged” Purdue University violated his Fourteenth Amendment rights “by using constitutionally flawed procedures to determine his guilt or innocence” and that the school had violated Title IX “by imposing a punishment infected by sex bias.”

Barrett added that the evidence in the case suggests the Purdue Advisory Committee “decided that John was guilty based on the accusation rather than the evidence.”

“Over 170 cases have been overturned in this way,” DeVos noted during the interview.

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