National Post Barbara Kay: Betsy DeVos’ support of due process on campuses makes her an excellent pick for secretary of education


National Post - Tuesday January 24th, 2017

Carolyn Kaster / AP
FILE - In this Nov. 19, 2016 file photo, President-elect Donald Trump and Betsy DeVos pose for photographs at Trump National Golf Club Bedminster clubhouse in Bedminster, N.J. Trump has chosen charter school advocate DeVos as Education Secretary in his administration. (AP Photo/Carolyn Kaster, File)

Barack Obama was the first president to make the advancement of feminist demands a priority. So the election of the sexist Trump has hit progressive women particularly hard. They fear that their hard-won battles for equality and rights will be rolled back by Trump through legislation or by the coming preponderance of conservative Supreme Court justices.  

But there is one area that could stand a little rollback, and when Betsy DeVos is confirmed as Secretary of Education, it will be. DeVos’s confirmation hearing was especially brutal. DeVos is deeply conservative and a member of the billionaire’s club surrounding Trump. And definitely not a feminist. Although DeVos’s passion for Charter schools is the most frequently cited talking point in the media when her name comes up, today I am more interested in another facet of her agenda, which is to return due process to the campus in cases of sexual misconduct. 

During her hearing Sen. Bob Casey asked DeVos whether she agreed “that the problem — and that’s an understatement in my opinion — of sexual assault on campus is a significant problem that we should take action on.” DeVos responded, tellingly, that she believes “sexual assault in any form or in any place is a problem,” by implication rejecting Casey’s implication that there is a “rape culture” of epidemic proportions entrenched in campus life. Then Sen. Casey pressed her on whether she would uphold the education Department’s 2011 “Dear Colleague” letter, which she evaded answering yes or no to, merely asserting that she would work with members of the Senate to “find some resolutions,” adding it would be “premature” to commit one way or another. 

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What, you are wondering, is so special about the “Dear Colleague” letter that it needed no further explanation? To understand, we must go back to Title IX, instituted in 1972, a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. At first it was applied mainly to sports programs, under-resourced for women, but by 1987 Title IX had broadened out to include every area of campus life — academic, health, housing, etc — and ultimately became the primary tool in combatting alleged rape culture on campus. 

In 2011, the Office of Civil Rights (OCR) of the Department of Education issued the alluded-to Dear Colleague letter, which was sent to every public and private college and university administration, mandating — via Title IX — the suspension of due process for an accused in sexual misconduct cases, with failure to do so grounds for withdrawal of federal funds. This was an illegal misreading of Title IX, but it went down well with feminist groups like the American Association of University Women (AAUW), who were delighted to see “a preponderance of the evidence,” i.e. a 50.1 per cent likelihood of guilt, replace “beyond a reasonable doubt (95 per cent certainty),” the standard in criminal court. The procedures outlined in Dear Colleague made it very difficult for an accused individual to defend himself: he could not see or present evidence, have a lawyer represent him, or confront his accuser, all routine rights in any real court.

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Terrified of losing funding, administrations not only complied with the OCR directive, they went overboard. The OCR’s understanding of “sexual misconduct” is so flexible it can mean anything from an improper word or glance to rape. Thus, City University of New York’s Graduate Center instructed its faculty to stop addressing students as “Mr.” or “Ms.” in order not to cause possible offence. A Brandeis student was found guilty — without a hearing — of sexual misconduct for staring at his boyfriend’s body in a bathroom.Many  young men’s lives have been ruined by what amounts to show trials mounted in deference to the OCR letter. One freedom of speech advocate described the OCR as “a massive, bureaucratic agency staffed with 650 lawyers … (with) one job: punish universities that don’t sufficiently police campuses for harassment and discrimination.” 

One of the charges levelled against Betsy DeVos in her hearing, urged on by the AAUW, was that she has contributed money to the Foundation for Individual rights in Education (FIRE), a nonprofit that bullishly defends freedom of speech and due process rights of university students and faculty. This is grossly unfair. Because FIRE defends the unjustly accused, DeVos is being portrayed as an enemy of women victims, obviously not the case at all.

At her hearing, DeVos said: “If confirmed, I look forward to understanding the past actions and current situation better and to ensuring that the intent of the law is actually carried out in a way that recognizes both the victim — the rights of the victims — as well as those who are accused.” These words should not be considered controversial in any just society. DeVos has proved in her confirmation hearing that she can take the heat. I look forward to what she will cook up in her new kitchen.

National Post 
kaybarb@gmail.com
Twitter.com/BarbaraRKay

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