Betsy DeVos and Patty Murray have long represented diametrically opposed approaches to Title IX policy regarding sexual-assault claims on college campuses. The education secretary, despite no political benefit in doing so, has pushed for a reevaluation of Obama-era policies that pressured colleges and universities to adopt procedures making it harder for accused students to defend themselves. The Washington senator, by contrast, has maintained that safeguarding due process for accused students will discourage women from filing campus complaints.
In September 2017, Murray charged that DeVos, in her speech urging fairness for both parties before Title IX tribunals, sought to “roll back protections for campus sexual assault survivors.” These “protections” included a mandate that schools lower the standard of proof to a preponderance of evidence (50.01 percent), thus making it easier to find accused students guilty. As Murray saw it, this guidance “led to more women and men coming forward about their sexual violence experiences.” Obama officials had been careful to avoid making such a claim, since praising guilt-tilting procedures for generating more accusations suggests a comfort with victimizing some innocent students.
A few weeks ago, a draft of the new Title IX regulations leaked; it contained promising proposals that would require colleges to disclose evidence and provide, upon request, training materials to accused students. It also included a clause ordering schools that hold hearings to allow cross-examination. (In a possibly fatal loophole, however, the draft did not require hearings.) To Murray, this fairer system was “shameful and appalling.” The Washington senator informed DeVos that the draft regulation’s procedures “would weaken protections for women”—and her criticism once again gave away the game. In defending the scores of lawsuits filed by accused students, universities have unconvincingly claimed that pro-accuser procedures benefited both men and women. Otherwise, courts could hold that they discriminated against male students, in violation of Title IX. Murray was making her allegiances explicit.
The Washington senator’s most detailed critique of DeVos’s Title IX policies—a four-page letter sent to the education secretary last week, and co-signed by five of her colleagues—was laughably weak. Much of the letter addressed not sexual misconduct, but instead the question of universities seeking religious accommodations (which have long existed) on other Title IX matters. The senators did criticize DeVos for describing Obama’s Title IX mandates as “failed policies,” but they chose not to defend Obama’s Education Department for discouraging cross-examination, mandating secret training, or pressuring schools into lightning-fast adjudications. Instead, the senators pointed to a news article about a study claiming that the vast majority of public comments about Title IX regulatory reform came from supporters of the then-existing, pro-accuser policies. The study’s authors admitted that 86.1 percent of these comments used the same “core language,” suggesting an organized effort to flood the system, likely by accusers’-rights organizations.
Murray’s argument: in evaluating whether the Obama-era guidance failed, DeVos should have ignored the 117 court setbacks for universities in accused students’ due-process lawsuits. And DeVos should have dismissed the sharp criticism of the Obama-era approach from dozens of law professors at Harvard, Penn, and Cornell. Instead, she should have confined her analysis to comments submitted to a federal website. Such an approach turns the idea of evidence-based inquiry on its head.
DeVos, who up until this week had declined to respond to constant criticism from House and Senate Democrats, publicly denounced as “false” Murray’s latest Title IX attack. “Our efforts,” DeVos maintained, “will restore due process and support all students, including survivors.” In unusually sharp language, she termed it “unbecoming and irresponsible of a U.S. Senator to sow fear and falsehood.”
If Democrats reclaim the Senate this November, Murray stands to become chair of the Senate Health, Education, Labor, and Pensions Committee, with jurisdiction over Title IX. Even if Democrats remain in the minority, Murray has emerged as one of the Senate’s most aggressive foes of due process on campus. That she has offered no evidence for her arguments hasn’t affected the ferocity with which she has pursued them.
Photo by Chip Somodevilla/Getty Images