A Plea for the New Department of Education Guidelines on Campus Sexual Misconduct

Brigham Young University scholar and family therapist Jason Whiting is one of many observers to express doubts about the new U.S. Department of Education guidelines on campus sexual misconduct. The new guidelines come as a response to the sweeping regulations issued by the DoE in 2011. The most controversial parts of both the 2011 and 2020 guidelines concern how colleges and universities adjudicate accusations of sexual misconduct against students, faculty, and staff. Dr. Whiting defends the 2011 regulatory regime without acknowledging the shockwaves it sent through university life.

An important feature of the 2011 system is the system of incentives it created. Universities that were insufficiently vigilant in ferreting out sexual misconduct were threatened with inclusion on a federal blacklist. Perhaps even more consequential was the threat of federal compliance reviews that were both time-consuming and costly; one of these reviews typically costs a university hundreds of thousands of dollars. Universities therefore had a powerful incentive to investigate any allegation of misconduct, no matter how frivolous.

And many investigations were indeed frivolous. A Brandeis University student was disciplined for awakening his then-partner with a kiss. Northwestern University literary scholar Laura Kipnis was investigated for writing an article that allegedly created a “chilling effect” on campus. I myself was investigated in 2016 for things that I said to fellow colleagues over pizza and beer off-campus 20 years earlier, most memorably the story about how I’d proposed to my wife (now ex-wife) at a strip club (I’ll forgive readers if they, too, feel scandalized in learning where I’d proposed.)

My accuser was a colleague with a grudge. The new Title IX tribunals turned out to be an excellent way to take out a hit on a professional colleague or a fellow student. A married couple teaching at Arizona State University was targeted by a colleague competing for a professorship at a better school. Remorseful lovers also learned to push the Title IX button, as did university administrators who sought to silence outspoken faculty members.

Some have argued this was all acceptable collateral damage if it rid campus of sexual predators. After all, you have to break a few eggs to make an omelet. Like Whiting, the defenders of the 2011 rules trotted out the same questionable statistics: 1 in 5 female college students is raped (Department of Justice statistics indicate that true prevalence of rape on campus is well below 20%); the number of campus sexual assaults has skyrocketed in recent years (assaults of college women actually declined by 50% between 1997 and 2013). 

Our police, courts, and college authorities traditionally didn’t take sexual assault seriously, and too often still fail to do so. For this and other reasons, I’m always inclined to treat statistics on sexual assault as underestimates. That having been said, it’s hard to believe that underestimation can somehow inflate the DOJ figure—well below 10%— all the way to 20% or more. If 1 in 5 female students were raped, no parent would ever send their daughter off to college.

Whiting also regurgitates dubious statistics on the prevalence of false rape allegations that were collected by a discredited scholar, psychologist David Lisak, and based on a single police department. But for the sake of argument, let’s take Lisak’s data at face value. Whiting is nonetheless using them to make an apples-and-oranges comparison. People report felony sexual assaults to the police; as we’ve seen, people can report just about anything to university Title IX officers (indeed, they don’t even have to be members of a university community to drop a dime on a faculty member or staff; some universities have websites for anonymous denunciations). Why should data on false reports to the police be applicable to campus Title IX offices?

If you believe, as Whiting appears to, that campus rape is commonplace and false accusations are rare, then maybe star chambers are justifiable given that the consequences seem relatively mild. In 2015, then-Representative Jared Polis (D-CO) sparked controversy when he said the following:

If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people. . . . We're not talking about depriving them of life or liberty, we're talking about them being transferred to another university, for crying out loud.

To his credit, Polis, now the Colorado governor, walked it back a few days later. But he’d tapped into a common line of thought: campus sex tribunals are not criminal courts, so the punishments they dispense are mild. Therefore, we shouldn’t worry too much if innocent students are expelled because they didn’t receive the same due process protections that criminal defendants get.

Every part of this reasoning is wrong. Students “found responsible” by campus sex tribunals often have troubling matriculating at other universities. Tenured faculty members may be fired, or ground down by repeated investigations until they resign. Title IX investigations can also trigger additional disciplinary proceedings for alleged misconduct that has nothing to do with sex.

So the stakes are high. Anyone accused of sexual misconduct by a college or university should therefore receive a fair hearing. Due process, after all, is a hallmark of liberal democracy. Unfortunately, the 2011 Department of Education guidelines ushered in a decade of star chambers in higher education.

Here’s what it’s like to be accused by the campus sex police. You’re rarely informed upfront of the allegations against you. Instead, you’re invited in for an interview and given ample opportunity to incriminate yourself. Sometimes you aren’t allowed to bring a lawyer with you. Meanwhile, campus sex adjudicators are typically trained to believe that anyone accused of sexual misconduct must be guilty. At Middlebury College, for instance, the Torquemadas are trained to “start by believing” the accuser, while asking themselves whether the accused student is “who he said he is.” Inconsistencies in an accusers story are typically explained away as the lingering consequences of trauma. Many universities have relied on a “single investigator model,” in which a solitary staff member is responsible for investigating, prosecuting, and adjudicating allegations of sexual misconduct. Finally, the 2011 guidelines strongly discouraged cross-examination: a student or faculty member accused of sexual misconduct usually isn’t allowed to question her accuser, even indirectly through an intermediary (as the 2020 guidelines provide for). 

Is it any surprise that the 2011 guidelines spawned a system of kangaroo courts? How else can we explain why Oberlin College obtained “responsible” (i.e., guilty) findings in 100% of the sexual misconduct cases adjudicated in the 2015-2016 academic year? It is affronts to justice like this that led one of America’s foremost champions for an equal and just society, Supreme Court Justice Ruth Bader Ginsburg, to call out higher education in an interview conducted by The Atlantic in 2018:

Interviewer: What about due process for the accused?

Ginsburg: Well, that must not be ignored, and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.

Interviewer: Are some of those criticisms of the college codes valid?

Ginsburg: Do I think they are? Yes.

Campus sex tribunals are always held in camera, with the accused sworn to secrecy. Consequently, much of what we know about them has come from expelled students who’ve sued their former colleges. The result has been setbacks for colleges in over 170 separate lawsuits. In a lawsuit against the University of Calfornia, Justice Richard Huffman sardonically commented, “Where’s the kangaroo?” Yet these kangaroo courts have often failed to remove actual predators from campus.

This is the state of affairs that Jason Whiting and others seek to preserve against the guidelines recently implemented by Secretary of Education De Vos. Yet Whiting questions the “grey area” in the new regulations. Surely, a 2,033-page policy document offers less room for grey area than the 19 pages of the 2011 Dear Colleague Letter? Nor can it reasonably be claimed that colleges and universities haven’t had enough time to prepare. The new guidelines were released months ago, and the Department of Education has been signaling their contents since 2017.

I’m no fan of Secretary DeVos or the Trump administration, but even a broken clock is right twice a day—and the new guidelines are a step in the right direction. They will increase due process on campus and reduce the proliferation of frivolous cases. Many eminent observers agree with me, including Harvard Law School’s Jeannie Suk Gerson, former ACLU president Nadine Strossen, former Virginia governor Douglas Wilder, and the aforementioned Justice Ginsburg. 

No college or university should tolerate sexual misconduct, so a campus sex bureaucracy that actually works would be a laudable contribution to the noble vision of equity on campus that was the original intent of Title IX.

Nicholas H. Wolfinger is Professor of Family and Consumer Studies and Adjunct Professor of Sociology at the University of Utah. His most recent book is Soul Mates: Religion, Sex, Children, and Marriage among African Americans and Latinos, coauthored with W. Bradford Wilcox (Oxford University Press, 2016). Follow him on Twitter at @NickWolfinger.