Due process and free speech are not the first causes one associates with the Donald Trump administration.
The president has joked that the police should not "be too nice" to "thugs" and suggested that libel laws should be changed to punish newspapers for running "hit pieces." Yet Trump's Department of Education, led by Betsy DeVos, is taking steps to guard civil liberties. In an equal and opposite role reversal, the American Civil Liberties Union is protesting these steps.
During the Barack Obama administration, the department issued a letter encouraging colleges and universities to use an expansive definition of sexual harassment, and to lower the standard of proof required for allegations of sexual misconduct and assault. The department suggested that colleges had to adopt these policies to comply with a provision of a 1972 federal law forbidding sex discrimination in higher education, a provision popularly known as "Title IX."
The new Trump administration rules are supposed to deter and punish sexual offenses while treating the accused with greater fairness and offering more protection for free speech. To qualify as harassment under these rules, conduct must be "so severe, pervasive, and objectively offensive that it denies its victims the equal access to education."
That definition is taken from a 1999 Supreme Court decision. Those who consider it too narrow have often ignored it. In a 2017 decision, for example, an appeals court tried its best to rewrite this language. But the Supreme Court was briefed on the implications of the language it adopted, and its conclusion makes sense: Pervasive but inoffensive conduct should not be policed as harassment.
The department also insists that in adjudicating allegations, both accusers and accused must be able to have advisers cross-examine the other party. Institutions may determine what standard of proof to use.
Whatever they use must be applied to faculty as well as to students. That feature of the rules may make the faculty a force for keeping standards of proof from being lowered too far. The rules also clarify that under Title IX colleges are responsible only for on-campus activity (another way the new policy tracks with Supreme Court precedent).
In 2015, Northwestern University professor Laura Kipnis wrote an essay decrying some of the results of the Obama-era policies, which she called a "sexual panic" on campus. The university then launched an investigation into whether her essay itself was an instance of harassment. This kind of abuse of free speech would be much less likely under the new rules, both because of the more precise definition of harassment and the restriction of Title IX to campus activity.
The new rules leave one Obama-era innovation in place. Under Presidents Bill Clinton and George W. Bush, the department had said that universities could let someone who had been accused of sexual misconduct appeal a finding of guilt without letting an accuser appeal a finding of no guilt. During the last administration, the department reversed course and required colleges that allow one type of appeal to allow the other.
That symmetry is at odds with the presumption of innocence and prohibition of double jeopardy that we apply in criminal cases. Perhaps this is justifiable because campus disciplinary proceedings are not criminal trials.
But given that their consequences can be severe - expulsion, and the quasi-official labeling of someone as a sexual offender - it may be unwise. It also seems, like so much of the Obama-era guidance, rather loosely tethered to anything Congress has actually enacted into law. In forbidding discrimination, for example, the 1972 statute does not imply any particular rule about appeals.
DeVos and Trump are, however, moving in the right direction. They are doing so in the face of a ferocious campaign of disinformation. ABC has reported, falsely, that the new policy would require victims to prove that the harassment they faced was so severe as to keep them from coming to school. (Actually, they would have to show that mistreatment had compromised their equal access to education.)
ABC also suggested that only a "small group of mens' rights groups" have urged the department to make the changes. The American Association of University Professors, no men's rights group, has produced a searching criticism of the Obama policies.
Several news accounts have included loose wording suggesting that the rules require colleges to let the parties cross-examine each other, with the implication being that a victim might have to submit to questioning from a rapist. In fact the rules forbid colleges from allowing this scenario. They require colleges to allow cross-examination, but also require that this cross-examination be conducted by advisers to the parties in the case.
In this case, the defense of due process and free speech require standing with the Trump administration - and not, sadly, with organizations that bear the words "civil liberties" in their titles.
Ramesh Ponnuru is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News.
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