Biden, Title IX and the Dangers Behind “Vague Positives”

I once read the story of an American who was told by a Chinese official during the Cold War that “all we want is peace.” During their car ride they also passed a billboard proclaiming “peace means victory.” Where scholastic philosophers insisted terminology must be precisely defined before meaningful discussion can commence, politicians and bureaucrats determined to pull a fast one speak in vaguely positive terms that can mean anything.
In a recent interview with The Washington Examiner’s Doug McKelway,1 one of America’s leading experts on the subject, K. C. Johnson, explained that this is precisely what the Biden administration is doing in its presentation of plans to alter Title IX regulations pertaining to sexual assault.
A Brooklyn College professor of history, Johnson has published two books exposing unjust treatment of falsely accused college students—The Campus Rape Frenzy: The Attack on Due Process at America’s Universities and Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case. The level academic rigor he brings to his research in this area is demonstrated by his studies of such non-controversial topics as President Lyndon Johnson and America’s inter-world war “peace progressives,” his lack of partisan bias by his support for the 2008 presidential and vice presidential candidacies of Barack Obama and Joe Biden.
As explained by Johnson and McKelway, the Biden administration’s weasel term is “fair process,” which sounds rather like “due process” but crucially lacks the latter’s precise legal meaning. What may seem a hairsplitting difference of phrase irrelevant to ordinary conversation is, therefore, of great significance when used by politicians and bureaucrats trained as or advised by experts the law—allowing for use of a seemingly reassuring term while still being “non-specific about whether the accused would be given due process rights.” This, in turn, keeps the Biden administration free from any concrete commitment against which future actions can be measured.
Johnson has no doubts about the purpose of the term in question, explaining that the Biden administration’s choice of it “was no surprise” since “‘ fairness’ is a much more, shall we say, ‘flexible’ concept in terms how universities handle these matters.” So flexible, in fact, that “some universities [are] defining fairness as a university adhering to whatever procedures it promises” when the promised procedures are themselves—by any rational standard—manifestly biased, unjust and unfair.
The tip of the iceberg is use of a “preponderance of evidence” standard, which means those making accusations of sexual assault need only prove that their story has a greater than 50% chance of being accurate. This goes well beyond reducing the standard of evidence from “beyond a reasonable doubt” to “reasonable probability.” Its means, instead, that accused students are disciplined, their educational opportunities, career prospects and lives destroyed even when they are almost as likely to be innocent as to be guilty—provided their guilt is slightly more likely.
Matters only go downhill from there. One of the most egregious examples of a rigged process is that put in place by Vanderbilt University, “where ‘fairness’ has been defined in incredibly narrow terms, for instance to allow a process where the accused student doesn’t get a hearing, where the accused student isn’t guaranteed an unbiased adjudicator.” And bias does not just impact how evidence is assessed, it determines what evidence is even considered by college disciplinary bodies. Officials at Amherst College refused to accepts as evidence transcripts of a text message conversation a student making accusations of rape had been having at the very time she claimed the rape had occurred (and in which she had been asking for advice about how to seduce her roommate’s boyfriend). During the notorious Duke Lacrosse Case 88 members of the university faculty issued a public statement saying they would disregard any judicial verdict in favor of students accused of rape and a group protester which had included calls for the defendants’ castration.
Not surprisingly, many falsely accused students mistreated under such “standards” have initiated court proceedings against the colleges and universities responsible. Nearly 200 such cases have resulted in decisions in favor of the falsely accused. Over 100 other schools settled out of court when it became clear that the writing was on the wall against them.
There can be no doubt that President Biden knows exactly what he is doing in initiating revisions to Title IX regulations. Such abuses are grounded in a trajectory towards “guilty until proven innocent” (dignified as “start by believing”) that motivated and was propagated by innovative regulations created under the leadership of then Vice President Biden during Barack Obama’s presidency. If Biden really was interested in facts and in justice he might admit his judgment had been mistaken, perhaps claiming naive good faith in the ability of investigators to presume the veracity of accusers while “double checking” rigorously enough to uncover the truth. But the record of injustice is so clear that Biden’s desire to reverse reforms that re-established due process can be only grounded in inexcusable ignorance, in ideological or partisan bias, in commitment to imposing his pet policies regardless of their impact or in the belief that it is better for the innocent to be punished than for the guilty to escape justice.
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