Biden’s Reade Denial Should Boost Title IX Rule Changes

Joe Biden and the Democratic Party have suddenly come to realize that their previously professed, reflexive belief in sexual misconduct accusations was the wrong standard. Instead, with the sexual assault allegation against Biden by former staffer Tara Reade now roiling his campaign, the Democrats are saying that the accused as well as the accuser deserve to have their accounts heard and weighed impartially and with “due process,” to borrow from recent statements by House Speaker Nancy Pelosi and others.

If this long overdue change is sincere, the Democrats can show it by supporting the pending new Title IX regulations. The new rules are designed to require campuses to treat students accused of sexual misconduct with fairness and impartiality instead of effectively presuming guilt, as too many campuses currently do. Now is the ideal time for the Trump administration to release those regulations, spearheaded by Education Secretary Betsy DeVos. The White House has been sitting on them for months, perhaps out of fear of being attacked as indifferent to survivors by Democrats, who have savaged DeVos for seeking fairness in campus sexual assault proceedings.

Democrats, emphatically including Biden, have been almost uniformly hostile to the proposed rules, while demanding a return to the Obama administration’s guilt-presuming “believe the woman” approach, which Biden led. But how can they justify continuing to attack the DeVos regulations while at the same time preaching due process for Biden?

On Friday morning, interviewed on MSNBC’s “Morning Joe,” Biden declared that “from the very beginning, I’ve said believing the woman means taking the claim seriously, and then it’s vetted, looked into.” He added that when evaluating sexual assault allegations, “in the end the truth is what matters.”Other prominent Democrats have gone even further in expressing newfound support for the rights of the accused. Speaker Pelosi remarked, “There’s a lot of excitement around the idea that women will be heard and will be listened to. But there’s also due process.”

Kirsten Gillibrand, long her party’s Senate guilt-presuming point person on the issue of sexual assault, asserted in an interview with WNYC’s Brian Lehrer that her mantra of “believe women” meant only that female accusers should be believed “to the extent that you then do an investigation.” Gillibrand has also maintained, “I stand by Vice President Biden. He’s devoted his life to supporting women and he has vehemently denied this allegation.” Meaning that she does not believe Tara Reade.

Randi Weingarten, president of the American Federation of Teachers, captured the party’s new consensus in an interview with the Washington Post. “Democrats,” she said, “always want to make sure that a woman is respected. But you also want to make sure that people have due process.”

Apart from Gillibrand’s curious suggestion that Biden’s political record answers the question of whether he committed personal misconduct, the standards recommended by Biden and his allies are both appropriate and welcome. They recognize both the need to ensure that sexual assault complainants are treated with the respect and sensitivity they deserve and the foundational importance of “due process” in evaluating such a serious allegation.

In fact, this rhetoric closely mirrors that offered by DeVos in 2017, when she rescinded Obama-era guidance and announced plans to develop the new regulations. DeVos stated that her goal was to ensure that “every survivor of sexual misconduct must be taken seriously,” but also that “every student accused of sexual misconduct must know that guilt is not predetermined,” since “due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.”

DeVos’ proposed regulations, released in draft form in 2018, provided a sense of her ambitious scope. Colleges would he held to account for sweeping serious allegations under the rug (as her Education Department has recently done in levying heavy fines against Michigan State and USC). But accused students would have a chance to meaningfully defend themselves through a hearing that would include the right for an advocate to cross-examine adverse witnesses and access to the evidence that the college gathered in developing its case.

The proposed regulations went forward and received significant public comment. They were cleared by the Office of Management and Budget last month. But they remain unreleased.

In 2018, leading Democrats criticized DeVos’ efforts, often in harsh terms. Gillibrand described the proposal as “betraying survivors of sexual assault and harassment on college campuses.” Pelosi issued a statement oddly claiming that the fairer adjudication system envisioned by DeVos “denies survivors due process.” Sen. Patty Murray demanded that DeVos “withdraw this rule, start over, build on the progress we’ve made instead of moving us backward, and work with us and women and survivors across the country.”

But now the allegation against Biden has suddenly created room for a rare moment of possible bipartisan accord, as both parties have rediscovered the importance of due process — which, of course, exists not simply to protect the rights of the accused but to help produce a just adjudication.

Releasing the new regulations now would not only help keep politicians honest on this issue, but also would provide colleges with sufficient time to make the necessary procedural changes for the fall semester. It might even serve as a strike against political cynicism, if Democratic politicians prove that their newfound support for due process comes not from political expediency but instead from an appropriate commitment to fairness and justice for all.

KC Johnson is co-author, with Stuart Taylor Jr., of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

Stuart Taylor Jr. is co-author, with KC Johnson, of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

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