Betsy DeVos kept her promise. As the education secretary vowed in September 2017, the department’s Office for Civil Rights last week formally proposed new regulations designed to create a more just process when campus tribunals adjudicate sexual-misconduct allegations. The proposed rules closely track recent court rulings favoring accused students.

In 2017 interim guidance, Mrs. DeVos had invited schools to develop fairer procedures under the law known as Title IX. But nearly all retained the Obama administration’s approach, which was heavily tilted against accused students. (The University of Kentucky was the most prominent exception.)

The most significant proposed change involves cross-examination, a fundamental element of due process. The Obama administration had strongly discouraged schools from allowing cross-examination of an accuser. “If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” Anurima Bhargava, an Obama Justice Department official, told the Journal this August. That’s a presumption of guilt.

State and federal courts alike have held that the resulting processes are unconstitutional. In a case from the University of Michigan this September, the federal Sixth Circuit Court of Appeals ruled in favor of an accused student. “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story,” Judge Amul Thapar wrote, “but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.” The Supreme Court, quoting legal scholar John Wigmore, has repeatedly described cross-examination as “greatest legal engine ever invented for the discovery of truth.”

The proposed regulations would apply that principle nationally. They would require live hearings in all Title IX cases, with lawyers or other advocates for the accused conducting cross-examinations of witnesses. Cross-examination can’t be effective unless accused students as well as accusers have access to all evidence—routinely denied to accused students under current practice.

The proposed regulations would require that accuser and accused alike have access to all evidence gathered in the investigation. If witnesses chose not to participate in the hearing, their statements would be discounted. The new rules would also dismantle the transparently unfair “single investigator” model, in which many colleges have allowed a single person, usually hired by the Title IX office, to be investigator, judge and jury.

One critical provision would mandate that schools turn over the materials they use to train adjudicators to either party on request. Washington’s Obama-era guidance required that Title IX adjudicators receive training in “the effects of trauma, including neurobiological change.” In practice, that is prejudicial: Many schools treat virtually any behavior by the accuser—including actions that real courts properly interpret as evidence of deception—as consistent with truthfulness. The University of Mississippi claims that “lies” by an accuser shouldn’t necessarily cast doubt on her credibility, arguing that lying simply is one of the “different responses” a victim can have to a sexual assault.

The proposed rules include provisions favorable to accusers as well. They stress that institutions must provide accommodations to students who allege sexual assault on campus or within school programs. The Obama administration notoriously mandated that schools apply the low “preponderance of evidence” standard in adjudicating claims. The new rules will permit them to continue doing so, and most almost certainly will. The regulations would impose limits on questioning about an accuser’s sexual history, in line with rape shield laws. They would retain an Obama-era requirement that schools allow accusers to appeal not-guilty findings.

In the past two years, groups representing sexual-assault accusers have insisted that they only want a fair process, not one that railroads accused students. Their response to the regulations proposed will provide a test of their sincerity.

The procedures that result from these new rules won’t be entirely fair to accused students. Unlike courtroom advocates, colleges lack subpoena power. And universities will still have strong incentives to favor accusers, if only to pre-empt media criticism or appease campus activist groups. But as the proposed regulations note, when a university “establishes an equitable process with due process protections and implements it consistently, its findings will be viewed with more confidence by the parties and the public.”

Messrs. Johnson and Taylor are co-authors of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”

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Education Secretary Betsy DeVos has made clear her intention to correct one of the Obama administration’s worst excesses—its unjust rules governing sexual misconduct on college campuses. In a forceful speech Thursday at Virginia’s George Mason University, Mrs. DeVos said that “one rape is one too many”—but also that “one person denied due process is one too many.” Mrs. DeVos declared that “every student accused of sexual misconduct must know that guilt is not predetermined.”

This might seem like an obvious affirmation of fundamental American principles. But such sentiments were almost wholly absent in discussions about campus sexual assault from the Obama White House and Education Department. Instead, as Mrs. DeVos noted, officials “weaponized” the department’s Office for Civil Rights, imposing policies that have “failed too many students.”

In 2011 and 2014, the OCR issued “guidance” letters radically reinterpreting Title IX, a statute prohibiting sex discrimination at institutions receiving federal money. The highest-profile of these directives required schools to adjudicate sexual-misconduct claims under the low “preponderance of the evidence” standard of proof.

But as Boston College’s R. Shep Melnick has noted, that was “just a minor part of the OCR’s procedural requirements.” Worse were “the agency’s rules on cross-examination and appeals; its informal pressure on schools to institute a ‘single-investigator model’ that turns one person appointed by the school’s ‘Title IX Coordinator’ into a detective, judge, and jury; and the intense pressure for schools to show they are ‘getting tough’ on sexual assault.” As Mrs. DeVos observed: “It’s no wonder so many call these proceedings ‘kangaroo courts.’ ”

The OCR’s guidance letters were not even formal regulations, so that the department bypassed the public notice and comment rule-making process required by the Administrative Procedure Act. Mrs. DeVos promised that wouldn’t happen again: “The era of ‘rule by letter’ is over.”

To be sure, withdrawing the Title IX guidance, as the department is now expected to do, would not be enough to create a fairer system on campus. In a just-released study, the Foundation for Individual Rights in Education found only two of the nation’s 53 leading institutions (Cornell and the University of California, Berkeley) earned a score of greater than 60% for fair procedures in their Title IX tribunals.

Under Obama administration pressure, schools dramatically increased personnel in their Title IX offices, creating entrenched bureaucracies that will aggressively resist reform. And several states, including California and New York, have enacted laws designed to make it even more difficult for accused students to defend themselves. Thus the system will remain rigged against accused students until the Education Department issues specific, detailed rules to ensure fairness.

Still, discarding the Obama-era guidance would have two immediate salutary effects. First, it would eliminate one of universities’ standard defenses against lawsuits by accused students, which is to claim that they were merely doing Washington’s bidding.

Second, it would allow the department to implement Title IX policy through new, carefully considered regulations after a period of public notice and comment. The FIRE study identifies provisions that would be necessary to achieve a minimum of fairness in campus tribunals—the presumption of innocence, clear notice of alleged violations, sufficient time for the accused student to prepare his defense, impartial fact-finders, access to all relevant and exculpatory evidence, the right to cross-examine the accuser, a meaningful right to legal representation, and a meaningful right to appeal.

As four Harvard law professors— Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet and Nancy Gertner —argued in a recent article, a fair process requires “neutral decisionmakers who are independent of the school’s [federal regulatory] compliance interest, and independent decisionmakers providing a check on arbitrary and unlawful decisions.” The four had been among more than two dozen Harvard law professors to express concerns about the Obama administration’s—and Harvard’s—handling of Title IX. So too had 16 University of Pennsylvania law professors, as well as the American Council for Trial Lawyers.

Due process is, or should be, neither a liberal nor a conservative issue, and Mrs. DeVos is hardly alone in recognizing the shortcomings of the policy she inherited. But the accusers-rights organizations that dominated Title IX policy during the Obama administration have reacted with outrage. Laura Dunn, executive director and founder of SurvJustice, deemed the mere news of the speech a “winter” for Title IX. Another group, Know Your IX, demanded that Mrs. DeVos “enforce and support Title IX.”

In fact, on Thursday Mrs. DeVos made clear her determination to enforce Title IX fairly—to combat the new normal of discrimination against accused students as well as any residual discrimination against accusers.

Messrs. Johnson and Taylor are co-authors of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

Appeared in the September 8, 2017, print edition.

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With his legislative agenda in trouble, President Trump could do a lot of good by using his executive power to reverse an egregious example of the Obama administration’s bureaucratic tyranny. I refer to the 2011 command by the Education Department’s Office for Civil Rights, and subsequent orders, forcing thousands of schools to take an aggressive role in the investigation and punishment of alleged sex crimes on college campuses.

Under threat of losing federal funds, almost all schools have willingly complied with a procedural regime that effectively presumes the guilt of every accused student, 99% of whom are male. These procedures include a virtual ban on cross-examination of accusers, a rushed process making it hard for an accused student to prepare a defense, and a mandate that those found innocent be subjected to appeals by accusers—a form of double jeopardy. The OCR also demands that schools judge guilt on the “preponderance of the evidence,” not the more rigorous “clear and convincing evidence” standard that was often used before, or the “beyond a reasonable doubt” standard that prevails in criminal cases.

Many universities have adopted other rules that compound the unfairness OCR explicitly demands. These rules redefine rape and sexual assault so broadly as to include almost all alcohol-fueled sex and many other commonplace, consensual sexual practices. Administrators have empowered campus sex bureaucrats—whose main mission is to please OCR—to decide accused students’ fates and “trained” them to view accused males as almost always guilty. Lawyers for the accused are barred from speaking in campus proceedings. The accused are often denied the right to see specific allegations or evidence against them.

OCR-mandated procedures have largely demolished due-process protections for many innocent (as well as guilty) accused males. Hundreds if not thousands have been falsely branded as rapists and expelled or suspended, with life-changing consequences.

So far Mr. Trump and Education Secretary Betsy DeVos have done nothing to limit the damage to justice and fairness from the Obama-era policy. The longer the status quo continues, the harder it will be to dislodge. Mr. Trump and Mrs. DeVos should require that schools either provide due process to accused students or leave alleged sex crimes to law enforcement.

The easiest and most obvious step toward reforming this wrongheaded system would be to revoke the OCR mandates. They came in the form of “guidance” for interpreting Title IX’s ban on sex discrimination, not as a formal, legally binding regulation. That means they could be revoked by the stroke of a pen.

But that step alone will not suffice. Nor can the courts undo much of the damage, although they have ruled in favor of many of the more than 100 accused males who have sued their schools. Guilt-presuming rules will remain in force at most federally funded colleges and universities unless the Trump administration requires them to respect due process, as well as the Title IX rights of both sexesto be free from sex discrimination.

Specifically, the administration should undertake the kind of rule-making its predecessor avoided by issuing guidance. It should gather evidence showing that many schools have systematically discriminated against accused students, which violates Title IX because those students are overwhelmingly male. And it should require universities that choose to adjudicate alleged sex crimes to adopt rules that protect the rights of accused students as well as accusers.

Those rules should, at a minimum, include rights to notice of the allegations and evidence, adequate time to prepare a defense, a fair hearing before an impartial panel, instructions that panelists presume accused students innocent until proven guilty, legal representation in campus proceedings, cross-examination (by a lawyer or other advocate) of all witnesses including the accuser, and a meaningful appeal of any adverse finding.

While such forceful regulatory action may at first blush make conservatives uneasy, it is the only way to counteract the vast damage done by the previous administration on this issue.

Sexual assault is a grave crime. Alleged victims should be treated with great kindness and respect, and violent criminals brought to justice according to the law. But there is no evidence that OCR’s commands have reduced the number of sexual assaults. By steering real victims away from police, OCR might well have kept some dangerous rapists out of prison, where they belong.

Mr. Taylor is coauthor with K.C. Johnson of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter Books 2017).

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The current battle over President Obama’s Supreme Court nomination of Merrick Garland is child’s play compared with the lurid brawl over George H.W. Bush’s nomination of Clarence Thomas 25 years ago. On Saturday, HBO marked the quarter-century anniversary with “Confirmation,” a retelling of how Judge Thomas, a conservative, up-from-poverty black jurist from Pinpoint, Ga., saw his nomination nearly derailed by allegations of sexual harassment made by Anita Hill, a black attorney who had worked for him 10 years earlier.

Ms. Hill’s calm, graphic testimony during the three-day hearing on her charges sparked a national debate about the then relatively little-discussed issue of workplace sexual harassment. Ultimately, the Democratic-controlled Senate confirmed Mr. Thomas for the

As a reporter who covered the at times stomach-churning hearings, I wondered how “Confirmation” would handle a story that ultimately boiled down, as the saying goes, to one of he said-she said—he denied all and stunned the senators by accusing them of staging a “high-tech lynching.” She said he pestered her for dates and subjected her to disgusting, sexually charged conversation.

Despite a surface appearance of fairness, “Confirmation” makes clear how it wants the hearings to be remembered: Ms. Hill told the whole truth and Mr. Thomas was thus a desperate, if compelling, liar. Her supporters were noble; his Republican backers were scheming character assassins.

[With apologies, the rest of this commentary is accessible only to subscribers to the Wall Street Journal, which owns the copyright, through this link: http://www.wsj.com/articles/the-hollywood-hit-job-on-justice-clarence-thomas-1460930701/]

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You probably know about Penn State, where top administrators, according to a recent report by former FBI head Louis Freeh, concealed critical facts about years of child molestation committed by assistant football coach Jerry Sandusky, all in an effort to protect the image of its football program. After the scandal became public, trustees fired the university’s president and its longtime football coach; two senior administrators left their jobs. The trustees then commissioned a multimillion-dollar investigation headed by Mr. Freeh, and they have promised to implement most of his 119 recommended reforms.

You may not have known, or remember, the leadership scandal at Duke, which became manifest in 2006 but led to no punishment or even censure of any kind for any of the professors and administrators who behaved disgracefully, including President Richard Brodhead.

We refer to the rapidly disproven allegation of a savage gang rape hurled at three Duke lacrosse players, with dozens more accused of complicity, by an African-American stripper whom they had hired to perform at a team party. Scores of professors formed themselves into what can most kindly be called a rush-to-judgment mob, adding their denunciations of the falsely accused lacrosse players (three were indicted) to the damage already done by a rogue district attorney, Mike Nifong.

In the weeks after the allegation went public in March 2006, 88 Duke faculty members endorsed an advertisement, paid for by university funds, that thanked students who were protesting “about what happened to this woman” (the only thing she said that happened was that three Duke lacrosse players raped her). It also thanked student protesters for not waiting for the police to conclude their investigation before they went out in protest –protests that included signs demanding that the lacrosse captains be castrated.

Mr. Brodhead’s initial public statement said that people must uphold the presumption of innocence. But at a private meeting that included faculty members who signed the ad, he was excoriated for that statement. (We interviewed a number of people at the meeting and reported on it in our book in 2007.) Mr. Brodhead subsequently emailed key administrators that “we can’t do anything to side with [the lacrosse players].” (His email came to light in a later lawsuit.)

In a subsequent open letter to the Duke community, Mr. Brodhead canceled the lacrosse season, accepted the coach’s resignation, and added several sentences about the evils of rape and the legacy of racism and misogyny. It made no reference to the lacrosse players’ presumption of innocence.
As publicly available evidence mounted that the accuser, Crystal Mangum, was not telling the truth, and that Nifong was hiding exculpatory evidence of the lacrosse players’ innocence, the Brodhead administration was asked by an alumni group to issue a statement about the presumption of innocence. In his reply, he said he could make no comment about due process and didn’t mention Nifong (whose ethical improprieties were subsequently documented by the state bar).

Why this willingness to demonize a university’s own students? The contemporary academy’s obsessive focus on matters of race, class and gender predisposed too many on Duke’s faculty to uncritically accept Ms. Mangum’s wild claims against supposedly privileged white jocks.

In the end, justice was done, to some extent. North Carolina Attorney General Roy Cooper, who took over the case from Nifong, concluded an exhaustive investigation by publicly declaring that the evidence proved that nobody raped, otherwise assaulted, or had sexual contact with the woman. The lacrosse players, a generally admirable group of young men (we got to know most of them while researching a 2007 book on the case), have gotten on with their lives. Nifong was disbarred.

Duke avoided even the pretense of accountability. In sharp contrast to Mr. Freeh’s inquiry at Penn State, Duke’s two investigators of the administration’s conduct spent less than a week on campus. Their report hailed the “eloquent” and “widely applauded” open letter of Mr. Brodhead, for whom the investigators expressed “compassion” and “support.” The report maintained “there is clearly more to be done” to “increase diversity” among the faculty and administration.

Mr. Brodhead and the professors in the rush-to-judgment mob have sailed through the episode. Most of the Group of 88–the professors who signed the spring 2006 advertisement–endorsed a second open letter (after Nifong dropped the rape charges and the state bar had filed ethics charges against him) that they would never apologize for the first ad. Duke recently named one signatory (Paula McClain) the dean of the graduate school, even as a university official conceded to the campus newspaper, the Duke Chronicle, that her signature on the original advertisement and the open letter might not have stood on “the right side of history.”

In May, Duke trustees renewed Mr. Brodhead’s contract for five years, praising his “inspired leadership.”

In two critical, and positive, ways, Penn State has already moved in a far different direction than Duke. Penn State implemented change from the top when trustees fired the president and football coach. And instead of the laughable investigation at Duke, the Freeh investigation demonstrated the trustees’ willingness to identify how and what went wrong, even when the revelations caused short-term embarrassment.

But in another area, Penn State may be doomed to follow Duke’s unfortunate example. Duke’s appeasing of its faculty extremists symbolized its failed response to the lacrosse case. Penn State, similarly, has shown little willingness to deal with its bitter-enders – those among the campus community who prefer to hide their eyes and ears from the evidence and cling to the belief that the late Coach Joe Paterno was somehow mistreated. Such views exist even among the board of trustees, two of whose recently elected members, Anthony Lubrano and Ryan McCombie, campaigned on a platform demanding that the board apologize to the Paterno family.

It’s possible that Penn State will fail to rehabilitate its currently tarnished image. But, unlike Duke, at least the school’s leaders appear to understand that, in responding to scandal, a university must position itself on the right side of history.

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