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Restoring Due Process on Campus

from The Wall Street Journal,

Finally, an end to the dreaded 2011 ‘Dear Colleague’ letter.

The Education Department announced Friday it is formally rescinding its guidance on how colleges and universities should adjudicate sexual assault under Title IX, ending a policy that denied basic due process to accused students and was often used to silence dissenting voices on campus. Eschewing the rule-making procedures required by the Administrative Procedure Act, the Obama Administration imposed this far-reaching policy through a 2011 “Dear Colleague” guidance letter, providing additional clarification in 2014. In contrast, Education Secretary Betsy DeVos withdrew the guidance only after she had spent months carefully considering the perspectives of all parties affected by the Title IX regime. Her listening campaign will continue as she solicits public comment on a new draft rule. On Friday the Education Department also provided schools with a Q&A outlining how they should handle allegations of sexual assault, misconduct and harassment in the interim. It addresses the most minimal fairness issues, which speaks volumes about the Obama-era directives. The agency’s Office for Civil Rights felt the need to explicitly require these provisions for clarification. For instance, the department now says, Title IX investigators should be free from bias and conflict of interest, and they should consider both incriminating and exculpatory evidence. Imagine that. Accusers shouldn’t be given preferential treatment over the accused during the adjudication process, and training materials and investigative techniques shouldn’t include gender-based stereotypes or generalizations. The Q&A also directs schools to ensure they are respecting the legal rights of students and faculty, including free speech. Title IX has often been used to silence controversial speakers and opinions, based on the questionable claim that uncomfortable speech is tantamount to harassment. Though it’s hard to believe, this summer Northwestern University professor Laura Kipnis endured a Title IX investigation over “Unwanted Advances,” her book criticizing the Title IX system. As part of the probe, Title IX officials pressured her to answer more than 80 questions about the manuscript, including queries about her sources, arguments and editorial choices. This kind of bullying to serve political goals should be unacceptable in a free society.

Mrs. DeVos’s critics want the public to believe you’re either with victims of sexual assault, in which case you must support the 2011 Title IX regime, or you’re siding with rapists. That’s a false choice. Mrs. DeVos deserves credit for protecting the rule of law and restoring Title IX to its original mission: protecting students from provable cases of gender discrimination.

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