Sexual-Assault Survivors Are Not Political Pawns

President Biden used the occasion of International Women’s Day to sign an executive order initiating a rollback of his predecessor’s restoration of due-process rights on college campuses. The Trump administration, under the leadership of Secretary of Education Betsy DeVos, developed new guidelines pertaining to universities’ application of Title IX of the Civil Rights Act. Those guidelines were themselves part of a course correction away from the Obama administration’s approach. In April 2011, Assistant Secretary for Civil Rights at the Department of Education, Russlynn Ali, issued a 19-page Dear Colleague letter instructing schools to use a lower preponderance-of-evidence standard in determining a student’s guilt during investigations into sexual misconduct. It also refrained from requiring schools to allow students to retain counsel while urging them not to allow students to personally cross-examine one another.

DeVos’s regulations guarantee live hearings — be they in-person or virtual — as well as the opportunity for cross-examination by both parties. They also allow universities to choose between the “preponderance of the evidence” and more weighty “clear and convincing evidence” standards. Moreover, while they have been broadly described as a boon to the accused, they also include provisions to count stalking and dating violence as unlawful discrimination on the basis of sex for the the first time. They also continue to shield accusers from being cross-examined directly by those they’ve accused. The regulations did not aim to “shame and silence survivors” or give “colleges a green light to ignore sexual violence and strip survivors of their rights,” as then-candidate Biden claimed when they were first unveiled last May. Instead, they were meant to provide a framework for a more comprehensive and just process than the Obama administration’s guidance — which was focused on signaling and speed (it put pressure on schools to conclude investigations within 60 days of beginning them) rather than process and truth.

Biden’s executive order declares that:

It is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.

Without much subtlety, but also without coming right out and saying it, the order announces its intention to initiate the repeal of the DeVos regulations:

The Secretary of Education shall consider suspending, revising, or rescinding — or publishing for notice and comment proposed rules suspending, revising, or rescinding — those agency actions that are inconsistent with the policy set forth in section 1 of this order as soon as practicable and as appropriate and consistent with applicable law, and may issue such requests for information as would facilitate doing so.

Jennifer Klein, of the newly reassembled Gender Policy Council, commented on the guidance saying, “The policy of this administration is that every individual, every student, is entitled to a free — a fair education free of sexual violence, and that people — all involved — have access to a fair process.” It’s nice enough rhetoric, but it’s detached from the policies Biden supported in the past and said, while on the campaign trail, he’d like to return to.

It’s also vague enough to allow the Biden administration to do what the Obama administration did before it: portray its opponents as cruel abettors of abuse, remain nominally committed to due-process rights, and implement policy changes that undermine them in the name of supporting survivors. My colleague David Harsanyi notes the personal hypocrisy inherent in Biden’s position, but more notable and worthy of condemnation is the way that it uses and affects the survivors he purports to be on the side of.

Far from supporting them, it turns empathy for them into a political position on the opposite side of a spectrum from support for basic due-process protections. Furthermore, the assertion that they cannot hold up under cross-examination or be subject to any of the rules that apply to other crimes is a demeaning one. Sexual assault does not rob one of their ability to express themselves or participate in society. Erecting rules around survivors’ fragility is misguided and insulting.

Biden’s implication that the regulations in place now are meant to “silence and shame” sends the exact wrong message to those considering coming forward with a complaint. The DeVos guidelines, whatever you may think of them, are not part of a grand conspiracy to hurt victims and empower perpetrators. His grossly irresponsible rhetoric constitutes a smear of DeVos and those who spent years working to create a responsible framework for handling this complicated issue, but the true victims are the survivors he’s used as pawns. How many people with evidence have been discouraged from coming forward because they’ve been erroneously told by an authority figure they trust that the system is designed to bring them further harm?

Joe Biden’s willingness to use survivors of sexual assault as political pawns has already done quite enough damage to our body politic and survivors themselves. Beware his efforts to codify changes that will leave no one better off, but he believes will make for a useful political cudgel.