Op-ed by CFJ president Curt Levey published in Fox News:
Following the confirmation of Justice Brett Kavanaugh to the Supreme Court, the Senate Judiciary Committee referred several of his accusers to the Justice Department for lying to Congress, reminding us that the importance of taking accusations of sexual assault seriously must be balanced with a presumption of innocence for the accused.
It is precisely that balance that the U.S. Department of Education was aiming for when it recently proposed rules, under its Title IX authority, governing how institutions of higher education and K-12 schools handle students' accusations of sexual misconduct.
The overarching goal of the rules, which will have the biggest impact on college campuses, was articulated by Secretary of Education Betsy DeVos: "Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined."
The proposed rules, which will become final after a 60-day public comment period that will likely result in some revisions, are intended to replace seriously-flawed Obama administration guidance on the same subject. That guidance, issued without public input, gave accused students—nearly always male and, as journalist Emily Yoffe has documented in The Atlantic, disproportionately black—little opportunity to defend themselves despite possible expulsion, rescission of job offers and graduate school admission, and other career-damaging consequences.
The Obama era guidance was the result of lobbying by liberal activists who portray sexual assault on campus as an exploding crisis and insist that all accusers must be believed, while dismissing inconsistencies or untruths in an accuser's story as the understandable result of trauma - a theme that should sound familiar to those who followed the Kavanaugh saga. The guidance pressured schools to deny basic due process protections to the accused, while also mandating the lowest possible standard of proof—under which a 50 percent chance of guilt means conviction—and defining sexual misconduct so broadly that it infringed on free speech.
Among the many due process rights commonly denied to accused students were cross-examination of the accuser and other witnesses, which the Obama administration worried could be “traumatic or intimidating," and access to exculpatory evidence and the details of the charges. More than 200 such students fought back with lawsuits against their schools. In fact, the success of many of these suits is one reason Secretary DeVos made replacement of the Obama guidance a priority...
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