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Vol. 81/No. 38 October 16, 2017
Revoked Obama directive had zero to do with
women’s rights
BY SETH GALINSKY
Education Secretary Betsy DeVos issued interim guidelines Sept. 22 to
replace an executive order issued by the Barack Obama administration
that gutted the constitutional right to the presumption of innocence in
the name of fighting sexual harassment on college campuses.
“One rape is one too many,” DeVos said Sept. 7. “One aggressive act of
harassment is one too many.” At the same time, DeVos said, “One person
denied due process is one too many.”
Obama’s order, imposed in an April 2011 letter issued by the Department
of Education’s Office for Civil Rights, had nothing to do with advancing
the fight for women’s equality. Working people and students should
celebrate its demise.
The letter reinterpreted Title IX, a 1972 law signed by President
Richard Nixon. A by-product of the mass struggle for Black rights and
the rise of the women’s liberation movement, Title IX prohibits
discrimination “on the basis of sex” in any education program that gets
federal funds.
Title IX was aimed at forcing university administrations to expand basic
rights, stopping them from denying equal rights to women. The Obama
reinterpretation turned it on its head, giving administrators the power
to regulate relations between students.
At the heart of the directive was an attack on democratic rights. When
investigating allegations, the letters says, “The school must use a
preponderance of the evidence standard (i.e., it is more likely than not
that sexual harassment or violence occurred).” This is substantially
lower than the “clear and convincing” evidence constitutionally required
to find someone guilty in criminal court, an important basic democratic
right. It shifts the burden of proof from college administrators onto
the accused.
In other words: Guilty until proven innocent.
The letter redefined sexual harassment as “unwelcome sexual advances,
requests for sexual favors, and other verbal, nonverbal, or physical
conduct of a sexual nature” — a definition so broad that almost anything
was chargeable. It turned over to school administrators the decision
whether or not to allow the accused, and the accuser, to have legal
counsel during hearings.
The letter threatened to cut off federal funds to any college that
didn’t implement its dictates.
The change accelerated the expansion of a massive bureaucracy to
investigate alleged offenses. It fueled the naming of thousands of
so-called Title IX “coordinators” and set up review boards that act as
judge and jury. It encouraged campus officials to “educate” students on
proper sexual conduct.
As all too often happens when liberal meritocrats set out to do “good,”
they trampled on people’s rights. These programs became entwined with a
push to write political correctness into the guidelines on speech and
conduct that have mushroomed on campuses everywhere.
A case study
In the opening paragraphs of the “The Uncomfortable Truth About Campus
Rape Policy,” the first of a three-part series in the Atlantic Monthly,
Emily Yoffe describes one example of this process, looking at what
happened when Kwadwo Bonsu, 23, was accused of sexual assault at the
University of Massachusetts at Amherst in 2014.
His accuser’s written account details in her own words that the entire
encounter — in which she did not remove any clothing or have intercourse
— was consensual, but that at one point she felt uncomfortable. A
resident assistant at a dorm, she said that it was only afterwards that,
“as my RA training kicked in, I realized I’d been sexually assaulted.”
She filed a complaint with the Amherst police who investigated and
closed the case with no charges. She also filed a complaint with the
university, which then banned Bonsu from visiting any dormitory other
than his own, forbid him from entering the student union, allowed him to
go to only one dining hall and warned him to not talk about the allegation.
Though found not guilty, Bonsu was suspended for a year, permanently
banned from living on campus and required to get counseling to address
his “decision-making” because the university claims he used the woman’s
name in an email and sent her a Facebook friend request.
As Yoffe shows, this is not an aberration. The system is stacked to
ensure cases like this happen all too often.
Liberal politicians and middle-class leftists are up in arms over the
rescinding of the Obama directive. They paint DeVos as a tool of
President Donald Trump, whose every action must be dark and reactionary.
Twenty-nine Democratic Party senators sent a letter to DeVos Sept. 14
demanding she hold off on changes until there is a “transparent
process.” But unlike the Obama executive order, which was implemented
with no discussion, the Education Department is soliciting public
comments before adopting the new guidelines.
The proponents of political correctness often claim that “campus sexual
assault is a national scourge,” despite figures that show that women in
college are less likely to be victims of sexual assault than nonstudents.
The fight for women’s emancipation is an essential part of the fight to
advance the interests of the working class. There is greater support for
women’s rights today than ever. One of the key turning points came when
women fought their way into the workforce in larger numbers, especially
in traditionally male jobs, including in steel mills and coal mines. As
the number of working women grew, their self-confidence grew. They won
the support and solidarity of their male co-workers, strengthening the
unions and the fight to win a woman’s right to choose abortion.
That’s the road forward, not an assault on basic rights, meritocratic
“nudges,” or bureaucratic meddling in the private lives of students.
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