NEW TITLE IX Regs: When Did Democrats Abandon ‘Presumed Innocence’?
Few principles are more fundamental in the Anglo-American legal tradition than the presumption of innocence. And so it hardly seemed controversial that the new Title IX regulations addressing campus sexual-assault allegations included a provision requiring schools to presume “that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.” Incredibly, 36 Senate Democrats and independent Bernie Sanders signed a letter to Education Secretary Betsy DeVos denouncing the presumption of innocence for students accused in Title IX tribunals. “By requiring the schools to presume there was no wrongdoing,” the senators argued, “students coming forward will have the impression the school assumes they are not telling the truth.”
That 37 senators, including the five most senior Democrats on the Senate Judiciary Committee, misunderstand a core principle of American law is troubling. The presumption of innocence doesn’t create “the impression” that witnesses against the accused are lying. It ensures that the adjudicator—in criminal matters, the state; in the Title IX process, the college or university—has the burden of proof, rather than forcing the accused to prove his innocence. A process without such a presumption is unfair.
A comparable recent letter positioned 105 House Democrats in opposition to another element of fundamental fairness in the Title IX process. The regulations, reflecting recent U.S. Appeals Court decisions in the area, ensure that both accused and accusing students will have a right to cross-examine adverse witnesses. To guard against the possibility of a victim being cross-examined by the person who attacked her, the regulations mandate that a lawyer or advocate for the accuser (or the accused) will conduct the cross-examination of the other party.
Both letters seem chiefly concerned that, unlike the Obama-era guidance they replaced, the regulations give accused students a meaningful chance to defend themselves. Neither the House nor the Senate Democrats mention the need for a fair process or the possibility that accused students might be innocent. To the legislators, the purpose of a Title IX adjudication appears to be less determining the truth of the underlying allegation than ensuring that accusing students are, in the words of the Senate letter, “comfortable.”
realclearpolitics-KC Johnson
