In October, Republican senators were the champions of due process. They argued that Supreme Court nominee Brett Kavanaugh must be presumed innocent in the face of the uncorroborated sex-crime accusations that Democrats had rushed to endorse. Forty-nine Republicans (and one Democrat) then confirmed his nomination to the Supreme Court.

“In evaluating any given claim of misconduct, we will be ill served in the long run if we abandon the presumption of innocence and fairness, tempting though it may be,” said Maine’s Susan Collins on the Senate floor in the decisive speech of the confirmation process. “It is when passions are most inflamed that fairness is most in jeopardy.” Senate majority leader Mitch McConnell declared, “totally uncorroborated allegations [must not be] enough to destroy an American’s life.”

Praiseworthy words, and yet congressional Republicans have been almost silent about another mockery of due process: the railroading of hundreds of college students on “sexual misconduct” charges considerably flimsier than those leveled against Kavanaugh. What’s more, fearful of being branded retrogressive on gender issues, they are failing to support Education Secretary Betsy DeVos’s valiant effort to right this wrong. In November, she proposed rules that would go a long way toward instilling fundamental fairness in the campus proceedings that follow an accusation of sexual misconduct. But rather than receiving vocal support from congressional Republicans, DeVos has been left to fend for herself in the face of vitriolic and often wildly misleading attacks from Democrats.

In the House, the only serious support for DeVos’s work has come from outgoing education committee chair Virginia Foxx (R-N.C.), who described the effort to create “reliable and fair procedures” as “crucial.” The proposed regulations, Foxx argues, would undo the “serious damage” caused by the Obama administration’s “arbitrary Title IX guidance.”

The only senator to publicly defend DeVos’s new rule initially was Lamar Alexander, chairman of the Health, Education, Labor & Pensions Committee. The Tennessean, himself a former education secretary, issued a press release cautiously praising DeVos for seeking “to balance fairness and support for survivors.”

On December 6, we asked the other Republicans on Alexander’s committee for comment on the DeVos proposals. Louisiana senator Bill Cassidy, who has previously expressed concerns about the fate of accused students on campus, endorsed her efforts: “Victims and the accused deserve to be treated fairly and receive due process, and I support Secretary DeVos’s work to restore and support these fundamental principles on every campus.” None of the other committee members responded, including Susan Collins, who had been so eloquent about the importance of the presumption of innocence when the accused was a powerful jurist rather than a simple college student.

The record at the state level is equally bleak. New Hampshire governor Chris Sununu, perhaps eager to appease the new Democratic majority in the state legislature, demanded that DeVos withdraw the proposed regulations. “We know,” Sununu asserted, “that 1 in 4 women and 1 in 10 men will be sexually assaulted in college.” In reality, around 1 in 40 women will be sexually assaulted while in college, according to the most reliable survey data.

In New Jersey, a bipartisan state senate committee approved a measure to codify the Obama-era Title IX guidance and create a state “Campus Sexual Assault Commission.” Cosponsored by the state senate’s minority leader, Republican Thomas Kean Jr., the commission will include multiple figures representing the perspective of campus accusers—including at least one “individual who is a campus sexual assault survivor”—but no one specializing in defending accused students or representing a civil-liberties organization. This one-sided commission, Kean promised, would “keep generations of students safe from sexual violence.”

The silence of Republican legislators is all the more unsettling given the concerns repeatedly expressed by high-profile conservative judges about the state of affairs on campus. During oral arguments in September in a case against Purdue University, Amy Coney Barrett of the Seventh Circuit Court of Appeals (she was one of the three finalists for the Court seat Kavanaugh now holds) was shocked to learn that a student was suspended from school and dismissed from the NROTC after a hearing at which the accuser neither appeared nor had to submit an official statement. Sparring with Purdue’s lawyer, Barrett noted, “It was a credibility contest in which you not only did not hear directly from [the accuser], you didn’t even read words that she had written.”

That same month, in a ruling involving a case against the University of Michigan, Amul Thapar of the Sixth Circuit Court of Appeals held that public universities must include cross-examination in campus sexual-assault tribunals. “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story,” Thapar wrote, “but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.”

Thapar’s opinion is one of more than 100 federal and state court decisions since 2011 in which universities found themselves on the losing side in lawsuits brought by students accused of sexual assault. In their rulings, judges have cited pervasive pro-accuser bias among academic officials; secret training of adjudicators to believe accusers even in the face of discrediting evidence; bans on meaningful cross-examination; concealment of exculpatory evidence; designation of a single bureaucrat as investigator, prosecutor, judge, and jury; and numerous other due-process outrages.

The rule DeVos is proposing seeks to end such abuses by requiring unbiased adjudicators and training materials; rights for accuser and accused alike to see the case evidence and the relevant training materials for adjudicators; and the right of accused students to designate agents to cross-examine accusers and other witnesses.

Dozens of Democratic legislators have attacked DeVos’s proposal. Without evidence, California senator Dianne Feinstein tweeted that allowing cross-examination and equal access to evidence would “silence” and “drown out the voices of victims.” Her New Jersey colleague Bob Menendez claimed that the fairer procedures envisioned by DeVos would “discourage student survivors from reporting incidents.”

In the House, presumptive speaker Nancy Pelosi released a statement asserting, absurdly, that the proposed rule “denies survivors due process.” California’s Barbara Lee, who narrowly missed becoming the House’s fourth-ranking Democrat, openly embraced a presumption of guilt and complained that the proposed regulations would remove the burden of proof from the accused. Another California representative, Jackie Speier, accused DeVos of being “intent on putting us in a time machine and taking us back to the Stone Age, when it was okay to drag a woman by her hair.” “We aren’t going back,” Speier promised.

At a time when the campus climate across the nation is quick to “believe the victim” and dismisses due process as part of “rape culture,” DeVos and her team are almost alone in the federal government in showing concern for the rights of the accused. She may, however, soon be getting a potent ally: William Barr, President Trump’s nominee to be attorney general. Last year, Barr offered a blurb for our book The Campus Rape Frenzy. “Male students accused of sexual misconduct are found guilty, and their lives destroyed,” he wrote, “by campus panels operating without any semblance of due process and all too frequently on the basis of grossly inadequate information.” Barr’s willingness to speak out against campus injustices contrasts sharply with the timidity of GOP legislators.

DeVos’s proposed regulations are now open for public comment, and victims’ rights organizations are flooding the process with calls to uphold the one-sided procedures of the last seven years. Congressional Republicans can help thwart this effort by publicly endorsing DeVos’s attempt to create a fairer campus system for all. It would show everyone that their demands for fairness to Kavanaugh go beyond partisan politics.

K.C. JOHNSON and Stuart Taylor Jr. are the authors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (2017).

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More than four years ago, 28 members of the Harvard Law School faculty publicly criticized the sexual-assault adjudication procedures adopted by the university under pressure from the Obama administration. They noted that these were “overwhelmingly stacked against the accused.” The law professors, including some with stellar feminist credentials, said that the university’s goal should “be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.” Similar expressions of concern about the basic unfairness of the federally dictated Title IX procedures, which most colleges had adopted enthusiastically, would also come from groups of law professors at Penn and Cornell.

Since April 2011, when the Obama administration sent thousands of schools its “Dear Colleague” letter reinterpreting Title IX to mandate guilt-tilting sexual misconduct procedures, colleges and universities have been on the losing side of 117 court decisions in lawsuits filed by accused students; 53 more lawsuits (at the federal level alone) were settled before a court could render any decision. Summarizing judicial concerns about universities’ one-sidedness in a 2016 decision involving a student from Brandeis University, U.S. District Judge F. Dennis Saylor wrote, “It is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”

As all of these developments occurred, the American Civil Liberties Union (ACLU) remained silent. For more than seven years, the ACLU never criticized the evisceration of due process and fundamental fairness in campus Title IX tribunals—although it also never endorsed the Obama-era standards. But in case after case, it ignored egregious unfairness to accused students who had strong claims of innocence. The organization finally broke its silence on November 16, after Education Secretary Betsy DeVos proposed new regulations on campus sexual misconduct designed to make campus procedures fairer to both parties. In an inflammatory Twitter thread, the ACLU described the new regulations as “inappropriately favoring the accused.”

It was a broad attack, and the ACLU did not exempt the fundamental protections that DeVos’s effort is designed to restore—the right of accused students to be presumed innocent; the right of accusers and accused alike to cross-examine witnesses through a lawyer or an advocate; and the right of the accused to examine all the evidence uncovered in the campus investigation and all the materials used to train campus adjudicators. The thread closed with a promise: “We will continue to support survivors.”

Ten hours after the tweets (which were surely posted before the ACLU had fully digested all 149 pages of DeVos’s proposed rule), the organization issued a broader analysis by Emma J. Roth, a fellow at the ACLU’s Women’s Rights Project, and Shayna Medley, a fellow at its LGBT & HIV Project. Though their article claimed that the ACLU “is equally committed to ensuring students can learn in environments free from sexual harassment and violence and to guaranteeing fair process for both respondents and complainants,” its tone and contents confirmed the thrust of the Twitter thread. They closed by characterizing the proposed rule as just another in “a long line of actions taken by the Trump administration to attempt to roll back civil rights for some of the most vulnerable students.”

Roth and Medley alleged three specific problems with the proposed regulations, only one of which directly addressed the procedures afforded to accused students: that the regulations would allow schools to choose between “preponderance of the evidence” (50.01 percent) and “clear and convincing evidence” (around 75 percent) as the standard of proof in adjudicating the innocence or guilt of accused students. (It is worth noting that the ACLU has not criticized the existing use of the clear-and-convincing standard mandated by some schools’ union contracts to adjudicate sexual harassment complaints against professors.) The two further problems they adduced are that the proposed regulations use the Supreme Court’s definition of sexual harassment, rather than the far more expansive language of Obama-era guidance, and reduce the number of university administrators legally obligated to act if they receive a Title IX complaint from an accuser. The official ACLU statement, issued by the organization’s deputy legal director, simply summarized the points raised by Roth and Medley.

It is difficult to discern a connection between the wildly inflammatory claim in the ACLU’s tweet—that the proposed regulations would be “inappropriately favoring the accused”—and these three specific complaints.

In practical terms, it’s unlikely that any of the three provisions would have much effect on students who experience sexual misconduct on campus. Since September 2017, DeVos has allowed every college and university in the country the option of using the clear-and-convincing standard of proof in Title IX cases—and, as far as we have been able to determine, not one has chosen to do so. In the current campus climate, any university president who moved in the direction of protecting possibly innocent accused students would almost certainly be subjected to a wave of campus protests and risk losing his or her job.

While it’s possible that a tighter definition of sexual harassment would exclude some Title IX complaints, the ACLU didn’t cite a single campus complaint against an accused student over the past seven years that would have qualified as sexual harassment under the Obama-era standard but not under the Supreme Court’s definition. Colleges, of course, could retain the Obama-era definition in their own disciplinary codes. And the mandatory reporting issue focuses mostly on bureaucratic minutiae rather than broader questions of principle.

In short, after spending seven years ignoring myriad and severe due-process deprivations on campus, the ACLU resorted to unlikely hypotheticals to criticize the proposed remedy.

The ACLU’s position is odd for an organization that purports to be devoted to civil liberties. Roth and Medley argued that for colleges to use the clear-and-convincing standard would “weight the scales against complainants in civil disciplinary proceedings.” But this view imagines the Title IX process as a contest between accuser and accused, rather than what it is: a process in which representatives of the college effectively investigate and prosecute the accused, with the accuser as the chief witness. As the Foundation for Individual Rights in Education (FIRE)—which has become the nation’s preeminent champion of civil liberties on campus and been tireless on the issue of the 2011 guidance—noted, “Given the marked lack of core due process protections in the vast majority of campus judicial systems, the adjudication of such serious, life-altering accusations requires more than our lowest standard of proof.” The American Association of University Professors has made a similar point. So has the American College of Trial Lawyers.

This year, moreover, federal judges hearing lawsuits against the University of Colorado and the University of Mississippi suggested that the preponderance standard in Title IX sexual-assault proceedings is itself unlawful. U.S. District Judge James Browning of New Mexico went further, holding that “preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to [the accused student’s] expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on [his] transcript.”

Perhaps there are other occasions in the ACLU’s history in which it maintained that multiple federal courts were worrying too much about the rights of the accused. But there can’t be many. The Atlantic’s Conor Friedersdorf observed that ACLU “staffers weighed what most meaningfully excludes someone from equal treatment in education—and they decided new due-process protections are more problematic than expelling someone after a process wherein they were unable to see evidence, or question their accuser, or be judged by a neutral party.”

As to the definition of sexual harassment, schools’ aggressive applications of the Obama administration’s more expansive definition have been denounced by many civil libertarians as infringing on constitutionally protected speech. And for good reason. Federal agreements settling investigations of the University of Montana and the University of New Mexico indicated that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature,’ ” including “verbal” (speech)—even if the allegedly harassing statements of the accused student or faculty member would not be offensive to an “objectively reasonable person of the same gender in the same situation.” It’s hard to fathom a civil liberties organization—especially one that decades ago stood up for the free speech rights even of Nazis—showing such hostility to federal protection of speech.

Roth and Medley provided a final reminder of the ACLU’s newfound indifference to the plight of the accused by asserting that the ACLU is especially concerned about “students of color” and other vulnerable campus populations. Yet there is ample evidence in the reporting of Emily Yoffe, Ben Trachtenberg, Jacob Gersen, and Jeannie Suk Gersen that the Obama-era Title IX guidance has disproportionately harmed accused students of color. At the few universities for which race-based campus statistics exist, such as Findlay and Colgate, men of color are dramatically overrepresented among those punished for sexual assault. “If we have learned from the public reckoning with the racial impact of over-criminalization, mass incarceration, and law enforcement bias,” Suk Gersen wrote in the New Yorker in 2015, “we should heed our legacy of bias against black men in rape accusations.”

As the Washington Post’s Radley Balko observed after the group’s Twitter attack, “The ACLU still does some great work. But damn is it ever disappointing to see this organization, with all its history, use the phrase ‘inappropriately favoring the accused.’ ” Whatever the merits or flaws of the rest of the ACLU’s activities, it has become an adversary of due process and free speech on campus.

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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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That campus Title IX sexual-misconduct tribunals are unfair to accused students is all but a truism. Since 2011, when the Obama administration forced a guilt-presuming reinterpretation of the 1972 law, more than 100 colleges and universities have been on the losing side in lawsuits filed by accused students protesting their treatment.

The Department of Education is planning to issue new regulations addressing the relationship between Title IX and fair procedures in cases of alleged campus sexual assault. The draft regulations are still under review, but as reported in the New York Times, they would in many ways produce a fairer approach to accusations of sexual misconduct on campus. If implemented, they would address many of the concerns that federal and state judges across the country have raised about campus tribunals. Based on the published material and information from a source familiar with the departmental development of the new policy, three salutary aspects of the proposed regulations particularly stand out.

First, they would complete Education Secretary Betsy DeVos’s work to make transparent the training regimes for campus sexual-assault investigators and adjudicators that colleges and universities implemented after 2011. The few examples of training materials that have been made public (almost always through litigation) seem designed to ensure disciplinary panelists presume an accused student to be guilty. And the secrecy of these materials frustrates accused students’ ability to defend themselves. We wrote about the issue of Title IX training last November; since our article appeared, biased training played a major role in another university legal setback, after the University of Mississippi employed training materials suggesting that an accuser’s lying be interpreted as a sign that the accused is guilty.

Courts have responded skeptically to the secrecy preferred by schools for their training guidelines. In a decision from earlier this year, U.S. District Court Judge John J. McConnell Jr. of Providence , an Obama nominee, rejected Johnson & Wales’s motion to dismiss an accused student’s lawsuit against the university by citing “the fact that [the student] asked for training material during the appeals process and it wasn’t obtained or given to him.”

DeVos’s interim guidance in September 2017 cautioned schools not to use training materials “that apply sex stereotypes.” The draft regulations confirm this point and—in a major change—require schools to divulge their training materials, upon request, to an accused student or any other party to a Title IX complaint. Such transparency would provide a powerful incentive against unfair procedures.

Second, the proposed regulations clarify that under Title IX, schools must treat all parties fairly. Just as a university’s biased treatment of an accusing student could constitute gender discrimination, so too could biased treatment of the accused student. This would be a welcome change from the Obama-era approach, which was geared almost exclusively toward helping accusers. One of the clearest explanations of why this change would matter came from Judge T. S. Ellis III of Virginia in a ruling against Marymount University. He noted that in evaluating an equity law, biased adjudication procedures “may well run afoul of Title IX” by “depriving students accused of sexual assault of the investigative and adjudicative tools necessary to clear their names.” The process must determine which (if either) of the students is the victim, rather than presuming from the start that the accusing student is.

Finally, the draft regulations require schools that hold hearings to provide for at least some form of cross-examination. An accused student, at a minimum, must be allowed to submit questions for the accuser through a panel. This would be a major change from the Obama-era guidance, which “strongly” discouraged any cross-examination by accused students. It’s unclear, however, whether the draft regulations would—as they should—require panels to ask all relevant questions requested by the parties. This flaw should be fixed before the draft regulations become final. Lawsuits against several schools, including Cornell, have exposed instances of panels unfairly limiting witness questioning.

The draft regulations’ bigger flaw is their failure to require schools to give accused students the right to have a hearing. As drafted, the regulations would still allow schools to use a practice, encouraged by the Obama administration, called a single-investigator model, where one person, hired by the Title IX coordinator, acts as investigator, judge, and jury—interviewing the parties and witnesses and writing a report that pronounces guilt or innocence. The Sixth Circuit, in a lawsuit filed by a University of Cincinnati student, held that “cross-examination takes aim at credibility like no other procedural device.” As a result, “whatever the outcome, ‘the greatest legal engine ever invented for the discovery of truth’ will do what it is meant to”—help the adjudicator to determine credibility and render a decision.

Recent years have shown that in cases involving allegations against students, colleges in most circumstances—whether due to fear of bad publicity, criticism from campus or faculty activists, or well-meaning assumptions that all accusers must be believed in order to rectify the injustices of the past—will adjudicate Title IX complaints through one-sided procedures. If the new regulations give schools the opportunity to continue to bypass cross-examination and other procedural protections by simply abolishing hearings, they will abolish them and an unfair system will be entrenched.

The draft regulations are, nonetheless, an important step in the right direction. After their publication, expected this month, will come a period of around 60 days for public comment, to which the agency is required by law to respond. Whether the resulting public discussion will be at all productive remains an open question. The draft proposals have already received hyperbolic criticism from accusers’ rights groups and prominent Democratic legislators. House minority leader Nancy Pelosi claimed they would create “extraordinary new barriers to justice for survivors.” To New York senator Kirsten Gillibrand, the new regulations amount to siding with “predators.” There can be little doubt that if the regulations are adopted in their current form, Pelosi, Gillibrand, and their allies will pressure colleges to eliminate hearings in Title IX cases as a way of avoiding even the minimal due-process protections that come from indirect questioning of the accuser.

K.C. Johnson and Stuart Taylor Jr. are the authors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (2017).

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The facts of this he-said, she-said case are that Saifullah Khan, a then-22-year-old Yale senior, and his accuser, also a senior, had Halloween dinner together at the dorm’s dining hall on October 31, 2015, and crossed paths later that night—first at a drinking party and then at a Yale Symphony Orchestra concert—ultimately ending up in her room at 1:11 a.m. and having sexual intercourse.

The trial centered on the credibility of the accuser’s testimony—which was halting, tearful, and contrary to proven facts on some points—and of her claim that she was so drunk that she could barely stand or walk, flitted in and out of consciousness, and awakened in her bed for just long enough to feel Khan on top of her and to try to push him off.

Khan, an Afghan who was recruited to an American prep school (Hotchkiss) and then to Yale because of his academic gifts, testified that the accuser did not seem at all intoxicated to him during the six hours they were in her room, flirted with him at the concert and on the walk back to the dorm, invited him into her room, and initiated both oral sex and, more than two hours later, full intercourse.

Numerous Yale students, journalists, and champions of rape victims’ rights have trashed the trial and especially the defense lawyer’s cross-examination of the accuser as “every survivor’s worst victim-blaming nightmare,” in the words of Jess Davidson, interim director of the advocacy group End Rape on Campus.

The article reporting the verdict in the New York Times, which exhibited bias throughout its coverage of the trial, disapproved of Khan’s lawyers working “relentlessly to discredit the account of the woman. . . . They asked repeatedly how much she had to drink. . . . They showed off her Halloween costume, a black cat outfit, and asked her why she had not chosen a more modest one, such as ‘Cinderella in a long flowing gown.’ ” Time called its piece “A Yale Student Accused Her Classmate of Rape. His Lawyers Asked What She Was Wearing and How Much She Drank.” An online magazine for young women, Refinery29, ran its account of the trial under the headline “Jurors Bought Stale Victim Stereotypes—Just Like the Defense Hoped.”

Yet defense lawyers are required to do their best to discredit accusers who are trying to put their clients behind bars—Khan faced a maximum prison sentence of 46 years and deportation back to Afghanistan, where he believes he would have been executed, stoned, or lashed under the country’s laws. And wasn’t it part of the defense’s duty to probe the accuser’s claim that she had had so much to drink that she was losing consciousness several hours later? The lead defense lawyer, Norman Pattis, called the reaction “a form of mass hysteria.”

His question about the costume that the accuser chose for her Halloween get-together with Khan spurred particular outrage among the accuser’s advocates. “A misogynistic tactic that men habitually use to silence women . . . by blaming them for their own assaults,” raged Amelia Nierenberg, a Yale Daily News columnist. Out of a variety of costumes from a Yale storage closet, the woman had opted for the sexy cat, pairing a sequined black miniskirt with matching tube top and tail. In pointing this out, Pattis stressed that his purpose was not slut-shaming but spurring skepticism about the accuser’s testimony that she was uninterested in Khan sexually and was afraid that he was stalking her and trying to get into her room.

In any event, the jurors appear to have paid little attention to the costume. They were far more interested in the grainy security videos that the prosecution made a focus of its case, claiming that they showed the accuser in such an inebriated state that she was stumbling, with her eyes closed and her left foot dragging behind her (as she testified), and needed Khan to hold her up while walking from the concert to her dorm. She emphasized that she was a dancer and did not normally walk that way.

The jurors had the videos replayed numerous times, and those who have spoken publicly saw nothing of what the prosecution suggested. “We looked at and we looked at and we looked at that video of them walking,” one anonymous juror told the New York Times, but “we could not see her leg dragging. We could not see her eyes shut.” Juror James Galullo told Alice B. Lloyd of this magazine: “We all agreed that she was walking hand-in-hand, arm-in-arm, smiling.” Alternate juror Elise Wiener told Robby Soave of Reason: “She was strolling with him with a big grin.”

This did not prevent news outlets, including the New York Times and the Yale Daily News, from repeating the prosecution’s characterization of the videos. Both papers could have obtained and posted the footage to let readers judge for themselves. They chose not to do so.

Hours after the alleged rape, the accuser told a Yale health center nurse that she needed a Plan B morning-after pill due to having had consensual sex with a regular partner. At the trial, she explained that she was “too traumatized” to tell the nurse of the alleged assault.

After meeting later that day and the next day with several friends—including a former boyfriend who took her phone, dialed Yale’s sexual-misconduct office, and handed the phone back to her—the initially irresolute accuser filed a complaint against Khan with the sexual-misconduct office and then went to the Yale police department.

The details of the process are unclear, but university officials, the university police, and the accuser decided to ask the New Haven state’s attorney’s office to prosecute Khan criminally rather than rely on the internal disciplinary process.

It is rare for the kind of sexual-misconduct accusations that are typically filed by university students to be sent on to a public prosecutor. The only plausible explanations here are that Yale officials felt the accusations in this case (unlike in most) to be serious enough to qualify legally as sex crimes or that the accuser herself, as was her right, decided to press criminal charges.

Yale suspended Khan on an emergency basis on November 9, 2015, a week after the accuser reported him. It also threw the Afghan native, who had few connections in the United States, out on the street on very short notice.

***
Much of the national coverage of the case has suggested that the verdict was a miscarriage of justice, but that belies any review of the trial evidence, little or none of which would have been uncovered and considered in a Yale disciplinary proceeding.

At a time when the accuser testified she was concerned that Khan was becoming aggressive in pursuing her—and had tried to enter her dorm room uninvited and had responded angrily when she told him to leave—she was also sending playful texts to him sprinkled with smiling and giggling emoticons. She even texted him a Shakespeare poem, “From fairest creatures we desire increase,” the first of the so-called “procreation sonnets.”

The accuser’s claim that after the two had met for Halloween dinner, Khan followed her into her entryway and tried to push his way into her room is almost impossible to reconcile with Yale’s electronic dorm card-key system. She swiped into her entryway at 6:47:31 p.m.; he swiped into his just seven seconds later. For her story to be accurate, he would have had to follow her into her entryway, try to push his way into her room while “I was trying to push him back,” and then go off to his own entryway and swipe his card-key, all in seven seconds flat.

The timeline of the evening suggests it was unlikely that the accuser could have been completely incapacitated by alcohol at the time of the alleged rape as she claimed. By her own account, she had five drinks containing varying amounts of alcohol at the party. While friends testified that she was somewhat—one said extremely—intoxicated when she left the party for the concert, it appears clear from the testimony that she stopped drinking between 10:50 p.m. and 11:40 p.m. The timeline is complicated by the fact that clocks were turned back at 2 a.m. due to daylight savings time, but it seems the accuser had her last drink at least four-and-a-half hours before the alleged rape, which apparently occurred after a phone call that Khan placed at 1:55 a.m. from the accuser’s sofa to his longtime girlfriend in Maryland (a call that lasted 141 minutes).

The two have an open relationship, and the girlfriend testified that she already knew the accuser from a summer physics class at Yale. She and Khan both stated that he handed his phone to the accuser at one point and the two women spoke briefly. “I said, ‘Hi,’ and she said, ‘Hi,’ ” the girlfriend told the court. She recalled the complainant used the girlfriend’s name when saying “Hi” to her. She said this was the extent of their conversation, and that she and Khan then continued talking for another hour and a half. Khan testified that the accuser had already given him oral sex before the phone call and asked him to “come to bed” after it ended.

One friend, Josh Clapper, initially told university police that the accuser “did not seem intoxicated” at the concert, which came after her final drink. At trial, his recollection had changed and he, like other friends of the accuser, said she needed support walking.

The apparent passage of those four-and-a-half hours, during which the accuser said she vomited two or three times, casts doubt on her assertions such as “I tried to say ‘stop’ but I’m not sure if anything came out. I couldn’t communicate because I was that inebriated.”

The accuser testified “he was pinning my legs and arms so I couldn’t move.” But Pattis noted that in her 61-page statement to police, she had never suggested that Khan pinned her arms.

After the alleged rape, the accuser awakened with Khan in her bed and told him she was embarrassed and disgusted by her behavior, by his account. After he departed, leaving two condoms that bore his DNA in her room—not the sort of oversight one might expect from a man who feared he might be accused of rape—he sent her a text at 6:14 a.m. She texted back “LOL.” Then Khan responded with a winking emoticon and she replied, “Go to sleep and this will stay between us that goes for you too.”

Jurors also took notice when a prosecution expert witness had to admit that the DNA found in a swab of the accuser’s anus the day after the alleged rape had come from a male other than Khan. This was particularly relevant as the accuser had told police that she had not had sex in six months. The news media completely ignored this crucial fact.

The accuser also claimed that she discovered after Khan left that he had taken her phone and used it to send messages declining her friends’ invitations to meet up after the concert. If true, this would be direct evidence that Khan was trying to isolate the accuser. But he denied taking or using her phone. This was a he-said, she-said standoff—and the jury clearly believed that he was the more credible witness.

***
What happens now? Saifullah Khan’s lawyers have requested that Yale readmit him and allow him to complete his last semester as a cognitive-science major. There is also an online petition circulating that demands “that Yale University continue to follow the guidelines laid out by the Obama administration, and continue to uphold Saifullah Khan’s suspension.” It had nearly 50,000 signatures as this magazine went to press.

It seems most likely that Yale’s University-Wide Committee on Sexual Misconduct (UWC) will employ a secretive campus proceeding to pass judgment on Khan with minimal due process, no speaking role for defense lawyers, no meaningful cross-examination of the accuser, and no transcript of the proceedings.

The UWC defines “sexual misconduct” as “a range of behaviors including sexual assault (which includes rape, groping and any other non-consensual sexual contact), sexual harassment, intimate partner violence, stalking, and any other conduct of a sexual nature that is non-consensual, or has the purpose or effect of threatening or intimidating a person or persons.” The policy adds: “Much sexual misconduct includes nonconsensual sexual contact, but this is not a necessary component. For example, threatening speech that is sufficiently severe or pervasive to constitute sexual harassment will constitute sexual misconduct.”

Any reasonable penalty would have to take account of the fact that Khan’s education has already been derailed for two-and-a-half years by an unwarranted accusation and a criminal proceeding.

It can fairly be said that Khan was insensitive in having sex with a woman he did not know well a few hours after she had downed a lot of alcohol and vomited repeatedly and in placing a 141-minute phone call to his girlfriend in the accuser’s presence, in between having oral sex and sexual intercourse with her. But by his account, the accuser was eager to have sex. And Yale’s rules do not mention insensitivity or any other violation of its policy less damning than “sexual misconduct,” a vaguely defined phrase that surely requires more than insensitivity and in many circles carries a connotation of sexual predation.

Some longtime observers of Yale’s process consider it possible—even probable—that despite the verdict of the criminal trial, the UWC will still find Khan responsible for “sexual misconduct” and expel him.

Indeed, his lawyers have appropriately called the UWC “a political entity draped in the presumption of guilt” that “rushed to judgment in this case” and that has more broadly “embarked upon a secretive Jacobin-style crusade in which complainants were pressured to come forward, procedural due process was ignored, and exculpatory evidence was casually and conveniently displaced.”

They have also pointed out that the chief of the Yale Police Department, Ronnell Higgins, recently told the Yale Daily News that his officers “are trained to ask the right questions . . . placing emphasis on a victim advocacy approach.” That sounds inconsistent with our legal culture’s hallowed presumption of innocence—which is nowhere mentioned in the UWC’s procedures. Not one of the sexual-misconduct complaints filed by female Yale students against males since the university’s current reporting system started in 2012 has been found to be false.

Asked by email for comment on the verdict and on what Yale might do now, Yale spokesman Tom Conroy responded: “It would not be appropriate for Yale to comment on the verdict in a criminal case, especially one that involved two Yale students. In regard to internal adjudications, Yale’s ability to comment on individual cases is limited by federal privacy law and Yale’s confidentiality policies. The University believes that confidentiality is critical to the integrity of our processes, and, for that reason, it does not confirm or deny that a specific allegation has come before the University-Wide Committee on Sexual Misconduct.”

Defending Yale’s overall handling of sexual-misconduct allegations, Conroy said that critics do “not take into account the process that Yale provides, which includes written and specific notice of the charges; the right to an adviser, who may be an attorney; the opportunity to present evidence and suggest witnesses; a written investigative report prepared by an impartial fact-finder; a hearing before a trained panel of members of the Yale community; the opportunity to submit questions through the panel to witnesses and the opposing party; a written panel report; the opportunity to respond in writing to the panel report; a written decision by a decision maker separate from the panel; the right to submit a written appeal to a second decision maker; and a written appeal decision.”

Judge José Cabranes, a U.S. circuit judge and Yale’s first general counsel, expressed another view in a devastating 2017 article in the Yale Law & Policy Review. While focusing mainly on threats to freedom of expression at Yale, he also assailed the university for its handling of sexual-misconduct accusations. “Today,” Cabranes wrote, “as a matter of Yale University law . . . in a sexual-misconduct proceeding, even for an allegation of non-criminal conduct. There is:

• No right to a public hearing, or even to a complete record of the private hearing;

• No right to have counsel speak on one’s behalf;

• No right to call friendly witnesses, much less confront and cross-examine adverse witnesses; and

• To top it all off, no assumption of innocence until proven guilty—merely a finding of wrongdoing that rests on a preponderance of the evidence (the lowest standard of proof known to American law).”

Conroy did not mention these aspects of Yale’s process. And while touting the “trained panelists” who pass judgment on accused students, he also failed to mention the fact that Yale (like many other universities) has taken great pains to keep secret the materials it uses to train them.

Why so secretive? As KC Johnson and I detailed in these pages last September, the training regimes are designed more to put a thumb on the scales toward guilt than to ensure a fair inquiry. The programs we were able to review were permeated with unsupported assertions about how false complaints are rare and that an accuser who contradicts her own prior accounts or established facts should be seen not as deceptive but as a victim of “trauma.”

Cynthia Garrett, a lawyer who is co-president of Families Advocating for Campus Equality, a group supporting students who say they were falsely accused, sat through the whole Khan trial and spent much time giving moral support to the defendant. She came away from New Haven, she says, “with the disturbing realization that, as a whole, the Yale community is insular, dogmatic, and intolerant of diverse perspectives. It became apparent from my interactions with at least one Yale Daily News reporter that any who dare expose alternate viewpoints are quickly shamed into silence.”

Saifullah Khan himself is far more upbeat. I asked him about the trial, and he wrote, “As dark as this experience has been so far, the foundation of this democratic republic kept my beliefs strong. And as divided as this country may seem online, I have found love and hospitality at every corner of this country.”

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

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Misinformation functions in a similar fashion, gaining traction as it’s repeated by increasingly high-profile individuals who venture ever further from the source material. In this manner, distortion about the facts of sexual assault has affected the training of judges, prosecutors, and other law enforcement officials. It is how misleading assertions become embedded in criminal and military law.

This is a story of how a theory without merit, derived from highly questionable statistics, imperils the most basic tenets of due process and risks turning every unproved accusation into a verdict of guilt.

The example discussed here began with a small study by an associate professor at a commuter college in Massachusetts. The 12-page paper describing the study barely created a stir when it was published in 2002. Within a few years, however, the paper’s principal author, David Lisak, a University of Massachusetts-Boston psychologist, began making dramatic statements that extrapolated far beyond the study’s conclusions. He created, virtually out of whole cloth, a theory that “undetected” serial rapists are responsible for 90 percent of assaults on college campuses, that they premeditate and plan their attacks, and that they are likely to have committed multiple acts of violence.

When speaking on campuses, to the military, and to law enforcement, Lisak started showing a highly disturbing video that he claimed was based on the transcript of an actual interview with a campus rapist to whom Lisak gave the name “Frank.” The authenticity of the video has been seriously questioned, raising grave doubts about Lisak’s contention that it illustrates the typical campus perpetrator—in his view, an unrepentant sociopath who cannot be reached or educated.

A news search for mentions of Lisak finds only a single one prior to 2009, in which he revealingly opined in an urban policy magazine about the Duke lacrosse rape hoax. He was interviewed again by CBS News in November 2009 about non-stranger rapes. He increasingly became the draw at conferences on sexual assault and his calendar filled with campus presentations. The media began to fawn over him, whether due to the drama of the notion of campuses being stalked by serial rapists or to the failure of campus administrators, blinded by the appeal of an identifiable villain, to point out the disconnect between Lisak’s portrait and their own observations. (A sociopath responsible for the majority of assaults can be removed from campus. The reality of college drinking and the still-developingadolescent brain, and the relationship of both to behavior fueled by poor judgment and peer pressure, provide no such easy fix.) By the end of 2010, Lisak’s status was on the rise. Within a few years, his was arguably the most high-profile name on the topic of sexual assault.

Lisak’s serial-rapist theory was reflected in the 2011 letter in which the Department of Education ordered universities to adopt specified, guilt-presuming disciplinary procedures for alleged sexual assaults and, in the process, gave credence to the probability of repeat offenders. Lisak’s theory also found its way into a January 2017 report by the White House Task Force to Protect Students From Sexual Assault, which simultaneously criticized a more recent, nationally representative study that had been subject to far more rigorous statistical analysis. Lisak was quoted so often as to make him a central figure in the pseudo-documentary “The Hunting Ground.” As his celebrity grew, the gap between documented facts and his status as an expert became almost inconsequential.

Criticism did eventually catch up to David Lisak. His serial predator model of campus rape has been compellingly debunked by scholarly researchers and well-regarded publications, including investigative articles and a book. His claims regarding the psychology of campus perpetrators were revealed to be based on nonexistent interviews. A key component of his presentations, an “unedited transcript” of an interview with a college rapist presented as timely and typical was revealed to be not only highly edited but based on an interview from three decades ago with a subject who was clearly an atypical outlier — as documented by Lisak’s own publications.

A 2008 paper, in which he linked “undetected serial rapists” with a propensity to commit serial and “crossover” acts of violence such as interpersonal attacks unrelated to sex, was shown to have provided no basis for such a generalization. His assertions, allegedly supported by a study he co-authored in 2010, that false accusations of sexual assault are exceedingly rare, have been shown to violate basic math by counting as true cases that didn’t qualify as sexual assault, had insufficient evidence to make a determination, or were referred for prosecution but about which the outcome was unknown.

As for Lisak’s vague statements about having interviewed “hundreds” of serial rapists (occasionally styled as “thousands” when others talk about him), in truth no evidence exists that Lisak has interviewed any “undetected rapists,” serial or otherwise, since his dissertation research 30 years ago.

His claimed years of research turned out to be a handful of actual research publications, reviews full of editorializing about others’ research, rehashing of the dissertation he completed in 1989, and a website that deceptively merges that dissertation’s 1980s-era research on 12 college students with unrelated data from the 2002 paper on repeat offenders.

Yet all of these devastating exposés have barely dented Lisak’s popularity. In spite of his own warning in that 2002 paper that the “non-random nature of the sampling procedures” precludes interpreting the data “as estimates of the prevalence of sexual and other acts of violence,” he has built a career doing exactly that. His original research—the ostensible basis of his expertise—fits on a single page of his curriculum vitae. In spite of this limited output, he continues to be a featured speaker and forensic witness based in large part on the very distortions that have been so convincingly exposed.

Were the damage wrought by David Lisak’s popularity confined to his college-circuit road show, there might be some hope that his toxic influence would be worn down by the critical thinking ostensibly prized by the academy.

Instead, that has not happened. The list of invited presentations, workshops, and media appearances in which he has hawked his unsubstantiated theories runs an additional 40 pages on his curriculum vitae. Among the most worrisome aspects of Lisak’s presentations and workshops is how they appear to be gaining influence among professionals close to the investigation and adjudication of sexual assault. His debunked serial predator theory and wildly extrapolated statistics on the false-accusation rate form the core of the training materials he has developed—and in some cases sold to law enforcement, prosecutors, judges, and the military.

Whenever Lisak presents his serial predator theory—invariably accompanied by his claims about the low rate of false accusations of rape–his toxic influence spreads. A small sampling shows its range:

• S. Air Force. Special training for the Office of Special Investigations: The Behavior and Characteristics of Non-stranger Rapists: Implications for Investigation and Prosecution.
  Joint U.S. Navy and Marine Corps Mobile Training Team conference, Naval Air Station Jacksonville. The Undetected Rapist.
  Delaware Judicial Education Retreat. Sex Offenders: Myths and Realities.
  S. Marine Corps. Special training for JAG officers: How Predators Pick Their Prey.
  California Administrative Office of the Courts. Handling Sexual Assault Cases: Sex Offender Characteristics and Evaluating Evaluations.
  Wisconsin Office of Justice Assistance Statewide Sexual Assault Response Team Conference. False Reports of Rape: What Do the Numbers Tell Us?
  Special Law Enforcement Training, State University of New York. The Behavior and Characteristics of Non-stranger Rapists.
  Prosecuting Attorneys Association of Michigan Sexual Assault Summit.Rapists: Myths and Realities.

Again, were the damage limited to misinforming attendees, it might not be so large as to warrant concern about the damage wrought by Lisak’s influence. Unfortunately, that’s not the case, either. For example:

A project funded by the U.S. Department of Justice compiled a list of 25 “facts” that judges who attended seminars offered by the National Judicial Education Program—a company for which Lisak has served as a faculty member and that continues to sell materials he created—said they wished they’d known before presiding over sexual assault cases involving adult victims. Although the fact list includes some reasonable and factual assertions, it also includes Lisak’s unfounded claims about serial predators and false reports. As part of its curriculum, NJEP advises judges to use voir dire to gauge prospective jurors’ familiarity with these “facts.”
Especially frightening was one judge’s conclusion that “when evaluating sex offender risk, actuarial assessments are more accurate than clinical assessments.” That is, a psychologist’s judgment of the danger the defendant represents should take a back seat to the statistical likelihood, based on Lisak’s “research,” that the defendant has committed other acts of “undetected” violence.
Lisak’s misinformation has been passed on to law students, practicing attorneys, and judges through a number of influential sources, including Cornell’s Law School, the Judicial Education Center, the Florida Court System, the National Center for State Courts, and the American Bar Association. In every case, the benefit is to the prosecution.
Even the National Academy of Sciences has used Lisak’s unsupported serial rapist theory to weigh in on “police mishandling” of rape accusations that “has allowed serial rapists like those in Lisak and Miller’s research to perpetrate again and again without detection.”
A 2016 amicus brief filed with the Supreme Court of Ohio made a similar charge but upped the ante by invoking Lisak’s (equally unsupported) claim that these serial offenders had a propensity for other violence as well.
Most troubling of all, Lisak’s material is being codified in law enforcement policies, legal precedents, and judicial guidelines at the local, state, and federal levels.

The Sexual Offense Bench Guide for judges in the state of Washington, for example, draws liberally from Lisak’s 2008 publication “Understanding the Predatory Nature of Sexual Violence.” His claims have been similarly incorporated into New Mexico’s Sexual Assault Bench Book, the Tribal Court Judges Bench Book on sexual assault, the Missoula County Attorney’s Office Policy and Procedure Manual, the Pennsylvania Crimes of Sexual Violence Benchbook, New York State’s Judicial Symposium, Wisconsin’s Prosecutor’s Sexual Assault Reference Book, and the Judge Advocate General Corps Criminal Law Desk Book.

The relationship between prosecutors, judges and the juries who will ultimately arrive at verdicts in criminal trials is further tainted by recommendations that prosecutors and judges incorporate into the jury selection process: namely, Lisak’s claim that false accusations are rare and his unsupported theory about serial offenses.

JAG guidelines for prosecutors, for example, advise that “myths” about the frequency of false reports be challenged “directly, in voir dire and in argument.” Prospective jurors whose information does not align with the (inaccurate) information provided in guidelines influenced by Lisak could then be dismissed and/or a seated jury could be told of the supposedly “true” facts. Recommendations from the NYU School of Law related to prosecuting sexual assault invoke Lisak to justify investing resources to pursue less credible cases because each represents “an opportunity to catch a serial rapist.” Prosecutors can, the recommendations continue, “uncover juror rape myth acceptance” via voir dire and “educate the jury pool about sexual assault.”

Once so codified in judicial and law enforcement guidelines, this toxic mixture of misinformation is extremely difficult to dislodge. Skewed jury pools, erroneous decisions at trial, and the weight of distortion have real consequences. A judge in Montana, for example, denied a request to have a case dismissed on the grounds of a Missoula police department requiring  officers to presume the guilt of the accused when investigating sexual assault. The judge stated that she based her ruling on Lisak’s (baseless, and thus misleading) testimony about the low rate of false reports. When such decisions are made, when presumptions of guilt are part of the training of judges and prosecutors, or reflected in jury instructions, innocent defendants are put in harm’s way.

Even those ostensibly in the business of impartial news coverage have been tainted by their own guidelines, as when the media have been fed the same misinformation, masquerading as insight. Their contribution to the problem is further amplified when they are further advised not to use the phrase “rape allegation” because “allegation is not a neutral term and strongly implies doubt,” and they fail to see that the alternative suggested—“reported rape”—implies an act that has, indeed, happened, distinguished only by the fact that it is on record.

Where does that leave those for whom accuracy, integrity, and truth matter?

The unfortunate reality is that the greatest potential harm of the current environment accrues to the accused. Therefore, defense attorneys already burdened with a state of affairs in which “accused” defaults to “perpetrator” and “accuser” defaults to “victim” need to equip themselves to take on not only expert witnesses citing bogus “research” but also the underlying studies.

This is not an easy assignment, but the use of good lawyering to dismantle bad “research” can be powerful, and good courtroom theater as well. When faced with a Lisakian claim that “only 6 percent of rape allegations are false,” the defense attorney can ask what percent, then, are true? David Lisak himself would have great trouble answering that question without being exposed as a statistical manipulator, because his writings have never even addressed it. Rather, he has used misleading language to imply that almost all rape accusations have been proven true. Indeed, a good defense lawyer could fairly ask: “Isn’t it a fact, Mr. Lisak, that the number of rape accusations that have been proven false may well be larger than the number that have been proven true?”

When the assertion about Lisak’s serial sociopaths is repeated, the defense attorney can point to the fact that Lisak’s study never established a single serial crime, nor that any of the rapists were undetected, and to Lisak’s own statement that his findings cannot be generalized beyond the limited scope of a single study. When Lisak’s “interviews” are invoked, the defense attorney can ask: How could anyone interview survey participants whom he never met and whose identities he never learned? Weren’t the only interviews Lisak actually did those with the 12 subjects of his three-decades-old dissertation research? And were not the highly impulsive subjects described in his dissertation wholly unlike the portrait he later painted of sociopaths with excellent impulse control who premediate and plan their crimes?

Lisak’s claims are wrong and the experts who tout them are vulnerable when asked direct questions. The discrediting of Lisak must become part of the court record, in case after case, before the far more difficult task of correcting the effects of his bogus claims on criminal justice policies can be accomplished.

The focus here has been on one particular—and particularly problematic—conveyer of misinformation. David Lisak’s high profile and willingness to depart from even his own published papers in service of an agenda makes him the embodiment of the attack on due process. But Lisak is not alone. He has recently been joined by other “experts” straying even further afield from verifiable data and often in direct contradiction of known science.

The difficulty of fighting the toxic distribution of misrepresentation and statistical sleight-of-hand is partially a function of high-profile purveyors and enablers. The codification of myths in law enforcement procedures; in the training of prosecutors and judges; and in policy at the town, county, state, and federal levels all but guarantees insidious and continuous regeneration. The roadmap such myths provide is wrong but concrete, offering up sociopathic villains in place of a continuum of offenders, permission to presume guilt in the absence of evidence, and a philosophy that accusers not only don’t lie but are never mistaken. Few combinations are more immune to objective inquiry than fear of monsters and the comfort of easy answers for taking them down.

But objective inquiry is called for and those who put obstacles in its way must be confronted. Neither law enforcement nor the courtroom should be a conducive environment for misinformation. It should not be intentionally introduced or passively tolerated. For now, a disproportionate burden will fall to defense attorneys. The battle against misinformation starts one case at a time.

Linda LeFauve is a college administrator and a contributor to Reason.
Stuart Taylor Jr. is an author and former nonresident senior fellow at the Brookings Institution who has written extensively on legal and policy issues.

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Last September, DeVos publicly called for fairness to both sides in campus adjudications. About two weeks later, the Education Department withdrew the Title IX “guidance” that the Obama administration had imposed to specify guilt-presuming procedures for the nation’s colleges and universities to use. DeVos has also ended the Obama practice of turning every allegation of sexual harassment into a sweeping, publicized federal investigation of all allegations university-wide over the past three years.

But these actions will only begin to undo the damage done by the previous administration. And to date, DeVos has had little impact on the deeper problem of systematic discrimination by universities against the accused. (Almost all students accused of sexual assault are male.)

In this #MeToo era, it might seem counterintuitive to suggest that campus systems have prioritized the interests of accusers over the need to achieve a just outcome. But in the context of student-on-student accusations, at least, college campuses are unlike the workplace, due both to campus ideology and to the effects of the Obama administration mandates. In 2011, 2014, and 2015, the Education Department’s Office for Civil Rights (OCR) issued “guidance” documents in the name of interpreting Title IX that effectively required more than 7,000 universities and colleges to use specified, guilt-presuming procedures to respond to sexual misconduct allegations. Announced with no public notice or opportunity for comment, these decrees resulted in procedures that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation,” as 28 Harvard law professors wrote in an eloquent indictment in 2014. More than 70 judges have issued rulings (some of them preliminary) against schools for violating accused students’ rights.

Most schools executed the Obama-era guidance so zealously as to be even more unfair to accused students than OCR explicitly required. But now virtually all have refused to implement provisions of the DeVos OCR’s interim guidance. (After scouring the country, a trio of accusers’ rights organizations was able to find only one school—the University of Houston—that was even considering changing its campus adjudication policies along the lines that DeVos had proposed.) And the pattern of injustice, which continues unabated, will almost certainly go on indefinitely unless and until the federal government takes much more forceful corrective action than anything DeVos has done so far.

Fortunately, the education secretary may be preparing to do just that, and make campus Title IX proceedings far more just, through a necessarily protracted and complicated “notice and comment” rulemaking process that she announced last September. It is designed to produce by 2019 new regulations for enforcing Title IX that will seek fairness for both complainants and accused students.

DeVos has committed to a two-step process to create a fairer campus Title IX system. First, in September, OCR issued new “interim guidance” containing several promising policy changes. Among other components, the interim guidance tells schools to: avoid “sex stereotypes or generalizations” and give accused students detailed, timely written notice of the allegations against them; use the same standard of proof in sexual misconduct cases that “the school applies in other student misconduct cases,” reversing the Obama demand that schools use the lowest possible standard of proof in sexual misconduct cases, even if they use a higher standard in other disciplinary cases; ensure that the investigator(s) be “free of actual or reasonably perceived conflicts of interest and biases for or against any party,” which seemingly excludes Title IX coordinators (whose powers the Obama administration sought to expand greatly) from the adjudication process, a provision that the final rules should make explicit; produce a written report “summarizing the relevant exculpatory and inculpatory evidence,” rather than simply looking for evidence that would support the accuser’s version of events.

Finally, the interim guidance placed “the burden . . . on the school—not on the parties—to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred.” While this wording strongly implied that the accused student was entitled to a presumption of innocence, final regulations should make that implication clear-cut.

As the Supreme Court has stressed, effective due-process protections in noncriminal cases are most critical when the impact and “risk of an erroneous deprivation” is great. Yet even these modest steps toward fairness drew frenzied denunciations from virtually every Democratic politician who has spoken publicly about them and a hostile or cool reaction from almost all university officials who have commented.

As a result, DeVos has not yet been able to change things very much on the ground.

Notice and Comment Rulemaking

DeVos foreshadowed more important, detailed, and lasting regulatory changes when she vowed in September that “we will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way,” as provided in the Administrative Procedure Act of 1946 (APA).

She stressed that just as one rape or one “aggressive act of harassment” is one too many, “one person denied due process is one too many.” The primary reference to due process for accused students in Obama-era OCR guidance, by contrast, was to caution that “steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.”

DeVos has eschewed what she calls Obama’s “rule by letter” approach. “We want to build a rule that’s enduring and seen by all as fair,” a top DeVos aide explains. “It’s a steady, thoughtful process, not a rush.”

The DeVos OCR initially has focused on developing detailed proposed rules for campus disciplinary proceedings involving alleged student-on-student sexual misconduct. After being finalized, approved by DeVos, and reviewed by the Office of Management and Budget and other agencies, the proposed rules will be published in the coming months. Interested parties then would have several weeks to file public comments.

The APA requires that agencies such as OCR respond in detail to the comments, which could take months; make any appropriate revisions in the proposed rules; seek input on those from OMB, the Justice Department, and perhaps other agencies; and issue final rules.

Accusers’ rights groups doubtless will criticize any new regulations, and court challenges are inevitable. But the final rules will have the force of law unless and until provisions are struck down by the courts or overhauled by the next administration, in another protracted rulemaking, or (less likely) by Congress.

Proposed Procedural Rules for Campus Sex Cases

The final regulations seem likely to include all the promising elements (presumption of innocence, requirement to document exculpatory evidence, avoidance of sex stereotypes, notice of allegations, prohibition of conflicts of interest and bias, elimination of a separate, lower standard for sexual assault cases) contained (and implied) in the interim guidance. But the interim guidance omits three requirements—two of them endorsed by federal appeals courts—that are absolutely critical to fairness.

First, the regulations should require schools to tell both complainants and accused students at the outset of the process that they have a right to have a lawyer at their own expense, or another advocate, represent them at every stage of the process.

They also should require schools to give every complainant and accused student a hearing before a panel of impartial adjudicators, with a right to meaningful and non-disruptive direct cross-examination of all witnesses, including the opposing party, on all contested issues of fact. The questions may be asked by the party’s lawyer, or by another chosen advocate, except that a complainant who objects to a personal, face-to-face confrontation with an accused student’s lawyer or advocate has a right to answer his questions on video if she so requests.

(Many schools now forbid lawyers from cross-examining the complainant or other witnesses or even speaking on their client’s behalf. These restrictions make it difficult for innocent students to present an effective defense.)

These changes would reverse the Obama-era OCR’s strong opposition to meaningful cross-examination of accusers, which the overwhelming majority of schools now prohibit.

That prohibition flouts both the Supreme Court’s description (quoting a legal scholar) of cross-examination as “the greatest legal engine ever invented for the discovery of truth” and the decision of the U.S. Court of Appeals for the Sixth Circuit, in a case filed by an accused student from the University of Cincinnati, recognizing that “cross-examination takes aim at credibility like no other procedural device.” The unanimous three-judge Sixth Circuit panel castigated the university for assuming that cross-examination only benefited the accused student: “In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused.” That’s because “few procedures safeguard accuracy better than adversarial questioning.”

Second, the regulations must specify that procedures that are structurally unfair to either party—not just to the accuser—constitute gender discrimination under Title IX. From 2011 onwards, the Obama administration employed Title IX on behalf of a victims’ rights viewpoint, contending that campus policies it perceived as insufficiently tilted toward the interests of accusers constituted gender discrimination in violation of Title IX—even though not all complainants are victims and not all victims are female.

The logical corollary of this approach is that if a campus system that tilts too far in favor of the accused violates Title IX, a system that tilts too far in favor of accusers also constitutes gender discrimination. But the majority of courts that have addressed this issue have concluded (as a district judge in a case filed against Rider University recently did) that bias, even overwhelming structural bias, “in favor of the alleged victim of sexual assault . . . is not the equivalent of demonstrating bias against male students.” The more compelling view, which the regulations should adopt, is that of a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit.

It refused in July 2016 to dismiss a student’s Title IX claim against Columbia University for anti-male discrimination. It ruled that a “university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”

Even assuming for the sake of argument that discrimination against accused students does not violate Title IX, an obscure provision of the Higher Education Amendments adopted by Congress in 1992 appears to provide an independent source of authority for Education Department regulations designed to ensure fairness in campus adjudications of sexual assault. This provision requires colleges and universities to adjudicate all accusations of student-on-student sexual assault as part of their disciplinary systems. And that seems a sufficient basis for Education Department regulations to ensure that the adjudications be fair.

Third, the rules should require colleges both to make public all materials used to train investigators and adjudicators in campus Title IX tribunals and to ensure that the training does not discriminate against either complainants or accused students, including by generalizing about truthfulness. Federal regulations have required training disciplinary panels in all Title IX cases, even though no such requirement exists for other campus disciplinary offenses. Almost all schools now cloak their training materials in secrecy, even from accused students. As we have reported, the materials currently used by many schools stack the deckagainst the accused by suggesting without a scientific foundation that false allegations of rape are very uncommon; that any internal inconsistencies in the complainant’s account or contradictions of other evidence should be attributed to “the effects of trauma”; and that rigorous questioning of complainants is forbidden as “blaming the victim.”

Beyond these three critical components, Title IX regulations that seek to ensure a fair process rather than a pre-conceived result must:

Remind colleges that Title IX does not trump the Constitution’s protection of free speech or a professor’s right to academic freedom. Such a disclaimer would safeguard against notorious cases such as that of Northwestern University Professor Laura Kipnis, who— in the guise of policing “sexual harassment”—was subjected to a harrowing Title IX investigation for writing an article that criticized how Northwestern handled Title IX complaints.
Specify that the notice of allegations that must be provided to accused students before they are asked to respond must include copies of any written complaint by the accuser or witness statements and a detailed written summary of any verbal complaint or witness statement.
Accommodate criminal investigations by affording accused students a right to remain silent and requiring schools to defer campus proceedings for a reasonable time if so requested by police.
Prevent investigators from also serving as adjudicators and prevent both from deciding appeals in the same case.
Guarantee accused students a right to a meaningful appeal of any adverse finding for insufficient evidence, procedural violations, excessive sanctions, and newly discovered evidence.
Permit schools to mediate between parties and help them settle cases on an informal basis (a practice forbidden by OCR since 2001).
Reaffirm that OCR has no interest in limiting schools’ ability to provide counseling, medical, academic or housing accommodations, or other services to alleged victims of sexual misconduct.
The new regulations also should reverse one of the most troubling elements of the Obama-era guidance—a double-jeopardy requirement that schools with appeals processes (as virtually all do) must allow accusers to appeal not-guilty findings.

As could have been predicted, this provision has resulted in institutions using dubious reasons to overturn panel decisions in favor of accused students. Unlike the civil justice system, in most campus Title IX tribunals the accused student faces not only the accuser, but also a college employee of some type who functions as investigator or even de facto prosecutor, followed by an adjudicator trained with one-sided material. Forcing a student who overcomes all these obstacles to then obtain a second finding of innocence is deeply unfair.

The Need and Legal Justification for the Proposed Rules

“Any school that uses a system biased toward finding a student responsible for sexual misconduct . . . commits discrimination,” DeVos has said.

Congressional Democrats critical of DeVos, by contrast, too often appear to have viewed such bias as an irrelevant concern. In this pernicious framing—most recently offered by Rep. Jackie Speier (D-Calif.), the House Democrats’ point person on campus sexual assault policy—campuses need not much worry about fair procedures, since between 92 and 98 percent of accused students are guilty. Yet the studies referenced by Speier indicate that the evidence in more than half of allegations is ambiguous, demonstrating why in many cases, even a careful, unbiased, fair, professional fact-finding process cannot reliably separate the innocent from the guilty.

It’s undeniable that some schools, especially in cases involving allegations against high-profile athletes who bring in money to their schools, have made it difficult or impossible for student victims to achieve justice. Nonetheless, overwhelming evidence exists in the public record of campus procedures that have the effect, if not the intent, of denying accused students a fair opportunity to defend themselves. As Harvard Law professors Elizabeth Bartholet, Nancy Gertner, Janet Halley, and Jeannie Suk Gersen noted in a white paper titled “Fairness for All Students,” filed with OCR in August:

Definitions of sexual wrongdoing on college campuses are now seriously overbroad. They go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment. They often include sexual conduct that is merely unwelcome, even if it does not create a hostile environment, even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter. . . . The procedures for enforcing these definitions are frequently so unfair as to be truly shocking. . . . Title IX officers have reason to fear for their jobs if they hold a student not responsible or [fail to impose] a harshly punitive sanction.
The prevalence of discrimination against accused students has been detailed by myriad journalists and scholars as well as by our 2017 book, “The Campus Rape Frenzy,” and books by Laura Kipnis and Robert L. Shibley. The journalists include Emily Yoffe, Cathy Young, Ashe Schow, and Robby Soave. The scholars include the 24 Harvard law professors mentioned above; 16 Penn Law School professors who issued a similarly reasoned open letter; and law professors Aya Gruber, Tamara Lave Rice, R. Shep Melnick, and Ben Trachtenberg, who have written individually on the issue. The nation’s leading campus civil liberties group, the Foundation for Equal Rights in Education (FIRE), for several years has cautioned that the implementation of Title IX has threatened fair treatment for accused students.

Finally, schools should voluntarily distinguish among allegations of (1) violations of the criminal law as defined by the state where the campus is located; (2) sexual harassment as defined in these rules; and (3) any lesser form of sexual misconduct specified in the school policies. (For DeVos to make these distinctions mandatory would arguably conflict with existing Clery Act regulations.) As DeVos has said, many schools enforce “ambiguous and incredibly broad definitions of assault and harassment.” Trivializing what is a felony in all 50 states serves the interests of no one.

These proposed rules may strike many as too prescriptive for a conservative administration that has vowed to cut back on federal regulation. And we wish we could think of a better way to protect the constitutional rights of independent-minded college students and professors.

But we can’t. The courts, limited to case-by-case decisions, cannot do it on a broad scale. And Congress, never a champion of the rights of accused people, will not do it. Nor will the states.

The paradox is that nothing short of muscular federal regulation will stop our politically correct universities from trampling the liberty of students and faculty.

Stuart Taylor Jr. is an author and former nonresident senior fellow at the Brookings Institution who has written extensively on legal and policy issues.

“KC Johnson and Stuart Taylor Jr. are coauthors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books, 2017).”

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Both parties in the case had credibility issues; he had violated a no-contact order, she had withheld from the university the bulk of their text messages. But the accused student possessed strong exculpatory evidence. He produced the full record of their communications, which included texts from the accuser to him discussing the encounter in a highly positive fashion and referencing a “plan” to have sex again. Further, a friend of the accuser, who saw her shortly after the incident, recalled her raving about her “really hot” experience.

Nonetheless, Brown’s disciplinary panel returned a guilty finding by 2-to-1. The decisive vote came from Besenia Rodriguez, the university’s associate dean for curriculum.

In subsequent court testimony after the accused sued Brown, Rodriguez admitted that she had not considered the accuser’s text messages or other post-incident behavior as having any bearing on the case. The reason, she said, was the hours of training that Brown had provided to prepare her to adjudicate the complaint—training required by the federal government. Rodriguez was specifically told that the impact of trauma on sexual-assault victims often causes them to behave in counterintuitive ways, such as not being able to recount a consistent set of facts or choosing to communicate with (rather than to avoid) the alleged assailant. “I felt like it couldn’t—I couldn’t really put myself in her shoes to understand why she was representing it that way,” explained Rodriguez, “so best not to attempt to judge her behavior.”

But judging the accuser’s behavior, noted U.S. District Judge William Smith, “was precisely her job as a panel member: to interpret the evidence and make factual determinations about it.” He added, “It appears what happened here was that a training presentation was given that resulted in at least one panelist completely disregarding an entire category of evidence”—evidence severely damaging to the accuser’s credibility.

Smith invalidated the university’s decision, noting, even apart from Rodriguez’s dereliction of duty, the overall process was far from equitable. The Brown official who designed the training Rodriguez received, Alana Sacks, did not respond to a request for comment.

Since 2011, the federal government has required all universities that receive federal money to provide “training or experience in handling complaints of sexual harassment and sexual violence” to adjudicators and investigators. Since nothing in the experience of most academics prepares them to competently investigate an offense that’s a felony in all 50 states, it makes sense to train those who are assigned to investigate campus sexual-assault allegations. But the ideological regimes used on many campuses are designed more to stack the deck against accused students than to ensure a fair inquiry. The risk of injustice is enhanced by the fact that, to the best of our knowledge, no school discloses the contents of its training materials to accused students before commencing the disciplinary process. The contrast between this training regime and the instructions given by judges to jurors in criminal trials—most obviously, that they should presume defendants innocent until proven guilty—is stark.

“In a criminal trial,” says former Baltimore state’s attorney Gregg L. Bernstein, “we ask jurors to use their common sense and apply their own life experiences to determining questions of credibility and guilt or innocence. We do not ‘train’ jurors at the expense of considering equally plausible factors as to why [an alleged] victim’s testimony might not be credible.” Bernstein, who during his term in office created a special unit to handle sexual-assault cases, believes a balance “can be struck in which the victim’s account is given credence and she is respected, while at the same time, the alleged assailant has the right to test the story. We should ask for no less when a person’s reputation can be altered for life by these types of [campus] allegations.”

The training mandate originated with the Obama administration’s 2011 “Dear Colleague” letter, which dictated campus procedures for sexual-assault allegations that dramatically increased the chances of guilty findings. Expanded guidance in 2014 from the Department of Education’s Office for Civil Rights ordered that the training include “the effects of trauma, including neurobiological change”—a phrase pregnant with hidden meaning. The Obama training requirements (without the “neurobiological change” part) were then formalized in a binding federal regulation in 2015.

While Secretary of Education Betsy DeVos has rescinded the 2011 and 2014 Obama commands, the 2015 regulation keeps most of the Obama training mandate in place. All the while, the secrecy of almost all the training materials has enabled them largely to escape public scrutiny.

“The biggest problem with these training materials,” says Justin Dillon, a Washington, D.C., lawyer who has defended dozens of students accused of sexual assault, “is that if the accuser comes in, contradicts herself and the evidence, all that gets explained away because of ‘trauma.’ Junk science like that makes it extraordinarily hard for students to defend themselves effectively. Schools cherry-pick studies without actually understanding anything about them; they just take this chicanery at face value. Students would need to first pay a lawyer, and then pay that lawyer to find a neuroscience expert who is both willing and qualified to take on this issue. And if you think lawyers are expensive, wait until you see how much experts charge.”

Middlebury College’s training, for instance, urges adjudicators to “start by believing” the accuser, while asking themselves whether the accused student is “who he said he is.” The training materials twice feature a hypothetical campus rapist announcing: “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.”

The college further orders that in order to be “objective,” investigation reports must not use the word “alleged” before “victim” or “sexual assault” and must avoid passages such as “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect” or the “victim has inconsistencies with her story.”

The role of the investigative report is especially important at Middlebury because, like more and more schools, it has abandoned disciplinary hearings on sexual-assault claims in favor of a single-investigator system. This was designed to shield the accuser from cross-examination, but also empowers a school-appointed official to serve as “detective, judge and jury,” in the words of Greg Lukianoff, president of the Foundation for Individual Rights in Education. In the specific system used at Middlebury, a college administrator renders the final decision based primarily on a report prepared by the investigator. The accused student and his representatives have no opportunity to cross-examine the accuser or the investigator. The training’s restrictions on the content of the investigator’s report thus have a direct effect on the final outcome.

After we wrote about the Middlebury training, the firm that conducted it, Margolis Healy, removed the associated material from its website. The company did not respond to a request for comment.

Eric Rosenberg, an Ohio lawyer who has represented accused students in both state and federal lawsuits, says that the “systemic bias” in training materials extends to essentially “mandating adjudicators shield accusers from exculpatory evidence” as it might “re-victimize the victim.” A state or federal judge, Rosenberg explains, “would undoubtedly find [that any] jury pool members who promise not to re-victimize a party who alleges an injury should be stricken for cause.”

Beyond putting a thumb on the scale towards guilt, campus-training materials are permeated by highly debatable psychological theories, spawned in part by the Obama administration’s requirement of training about “neurobiological change.”

Emily Yoffe’s blockbuster September article in the Atlantic on “The Bad Science Behind Campus Response to Sexual Assault” uncovered widespread use of a concept called “tonic immobility.” Yoffe explored the pervasive influence of Rebecca Campbell, a Michigan State psychology professor, who claims that as many as half of all sexual-assault victims experience tonic immobility and that this condition, along with other neurological effects that occur during an assault, renders them unable either to resist or to recall the alleged attack accurately later. Campbell has done no empirical research on tonic immobility, and there is no clear evidence that the phenomenon—in which some prey animals go into a type of temporary paralysis when threatened—occurs in humans.

Training at Harvard Law School in 2014 borrowed heavily from Campbell’s ideas about tonic immobility, according to an article by Harvard Law professor Janet Halley. She said the school provides its tribunals with “a sixth-grade level summary of selected neurobiological research,” which claims that rape victims’ trauma causes neurological changes, which can result in tonic immobility. This “can cause the victim to appear incoherent and to have emotional swings, memory fragmentation, and ‘flat affect’ [so that her statements] can be ‘[m]isinterpreted as being cavalier about [the event] or lying.’ ” The Harvard training, Halley wrote, is “100% aimed to convince [disciplinary panelists] to believe complainants, precisely whenthey seem unreliable and incoherent.”

A still-pending case led U.S. District Judge John Padova to suggest that the University of Pennsylvania’s training of campus adjudicators is so biased that it may violate Title IX by discriminating against males. In a September 13, preliminary ruling, Padova cited the university’s training materials as a basis for rejecting Penn’s motion to dismiss a Title IX claim in a lawsuit filed by a student the school had found guilty of sexual assault.

Penn used a training document, “Sexual Misconduct Complaint: 17 Tips for Student Discipline Adjudicators,” disseminated by Legal Momentum, a women’s advocacy group that has harshly assailed Betsy DeVos’s efforts to make the handling of campus sexual-assault complaints more fair. The 17 “tips” about accusers include:

“The fact that a complainant recounts a sexual assault somewhat differently from one retelling to the next may reflect memory processes rather than inattentiveness or deceit.” Legal Momentum provides no guidance on how adjudicators should identify “memory processes,” “inattentiveness,” or “deceit.” The implication that inconsistencies are irrelevant to assessing credibility is contrary both to our legal traditions and human experience.

“Victim behaviors during and after a sexual assault may appear counterintuitive to those unfamiliar with sexual assault.” The Legal Momentum document goes on to offer examples suggesting that virtually any conduct or statement by an accuser—resisting or not resisting the alleged assaulter; subsequently contacting or subsequently avoiding the alleged assaulter; testifying emotionally or listlessly; recalling or not recalling events—is consistent with the guilt of the accused.

“False allegations of rape are not common” and “research places the [false rape report] rate in the general population between 2% and 10%.” But this research defines “false” extremely restrictively and excludes a great many cases in which the accused is clearly not guilty of sexual assault and many more in which the available evidence leaves unclear the veracity of the accuser’s account.

As for accused students, Penn’s training material seems designed to sow skepticism about their claims of innocence. The “typical” campus rapist, according to the document, might possess many “apparent positive attributes such as talent, charm, and maturity [and] a deep commitment to community service.” But such traits are “generally irrelevant.” Campus rapists “[p]lan and premeditate their attacks, using sophisticated strategies to groom their victims for attack and isolate them physically.”

Bernstein, the former top Baltimore prosecutor, expressed concern that the Penn training did not meet the “standards” necessary for an “objective process” that could determine the truth of allegations. Most of the tips, he notes, “leave a clear presumption of guilt in the investigator or adjudicator’s mind and provide a victim-centric explanation for otherwise inconclusive, inconsistent, and exculpatory testimony to the exclusion of other factors.” Legal Momentum did not respond to a request for comment.

The training materials and practices that have surfaced from other institutions are equally one-sided.

George Mason’s training plan contains a lengthy section instructing investigators and adjudicators to “avoid an implication of blaming a complainant,” such as by holding “the belief or expressing an opinion that a person who is alleging sexual assault was in some way responsible, whether wholly or in part, for what happened.” Testing an accuser’s truthfulness by asking about her pre-incident behavior with the accused student or why she waited for months to file a report or why she did not go to the police would all constitute blaming the victim. If even considering asking any such questions, the adjudicator is ordered by the training to adjourn the meeting and consult with fellow panelists before proceeding. There is no comparable caution regarding questions asked of accused students.

A University of Texas blueprint for sexual-assault investigations recommends reducing “the number of reports prepared by investigators,” so as to frustrate defense lawyers’ efforts to point out contradictions among an accuser’s statements. This recommendation belies any pretense that the university’s investigators are neutral fact-finders.

The training at Ohio State tells disciplinary panelists that as many as “57 percent” of college males “report perpetrating a form of sexual[ly] aggressive behavior,” among other points seemingly designed to prompt guilty findings. We are aware of no reliable study that makes such a statistical claim. The judge who cited the 57 percent did not say where Ohio State got it, and the school’s full training materials remain sealed.

Cooper Union’s training program describes a “typical” sexual-assault case as the work of a scheming predator: An upper class male who meets a freshman female at a party, accompanies her alone back to her room, and “pours ten shots out of a bottle he pulls out of his backpack” for her to drink. The accuser can later recall nothing, but believes that they had sex.

At SUNY-Plattsburgh, the school’s Title IX coordinator trains the members of sexual-assault hearing panels. In a recent appellate hearing in New York state court, it was revealed that she had misstated the university’s own definition of consent to make a guilty finding more likely, by ruling out “consent by conduct” to sex. SUNY’s lawyer conceded to the appellate judges that the coordinator’s explanations of Plattsburgh policy to the tribunal members were “admittedly confusing.”

The head of a Title IX disciplinary panel at the University of North Carolina, Charlotte, testified in federal court that his institution’s training prompted him to deny the accused student a chance to present friendly, post-incident text messages the accuser sent to him, even though they contradicted her claim that she had come to fear him after they had sex. The panel chair said that the training allowed the tribunal to consider only any messages that “directly answer[ed] the question of consent, to consent to sexual acts.” A federal judge called this exclusion of exculpatory evidence “troubling” and denied the university’s motion for summary judgment.

Such training regimes are the norm across the country, according to four lawyers we talked to and to public statements by two others who have through lawsuits obtained the training materials adopted by many schools. The training materials used by the vast majority of colleges still remain secret.

The new regulations that Betsy DeVos has promised to issue regarding campus proceedings—probably next fall, after publishing proposed rules and considering public comments—will likely continue to require training of some kind, which, at least for investigators, is sensible if it is done well.

Meanwhile, the training materials we have seen are flatly contrary to the Trump administration’s interim guidance for colleges on campus sexual-assault allegations, which provides that “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations may violate Title IX.” DeVos has repeatedly called for colleges to make their processes fair to accused students as well as their accusers.

The time is ripe for some of the accused to file complaints with the Department of Education’s Office for Civil Rights challenging these training programs as violating Title IX’s prohibition on sex discrimination. Such complaints would encourage the Education Department to require that schools make public the contents of their training for sexual assault investigations and tribunals. The accused—many of whom have wrongly assumed that they would be treated fairly and the truth would set them free—would then know what they are up against.

KC Johnson and Stuart Taylor Jr. are the authors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (2017).

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Not surprisingly, DeVos was immediately attacked. From her poor performance at her Jan. 17 nomination hearing to her preference for charter schools over public education and her Oct. 2 decision to rescind 72 policy documents on the rights of students with disabilities, DeVos has been a lightning rod. The campus sexual-assault speech was another opportunity for opponents to strike. On a call with activists convened in response to her speech a day later, former Vice President Joe Biden weighed in. Biden, who had been the force behind the Obama regulations, called supporters of the DeVos approach “culturally Neanderthals,” and told the activists they needed to stand up against people like “those Nazis marching” in Charlottesville.

Less predictable was the support DeVos received from other, traditionally liberal quarters. She won cautious applause from the editorial boards of the Washington Post, the Boston Globe and USA Today. Even more surprising, she is making common cause with some respected feminist law professors, major organizations of lawyers and even California Governor Jerry Brown, a progressive Democrat. On Oct. 15, Brown vetoed a bill designed to perpetuate the Obama regulations in his state, citing some “colleges’ failure to uphold due process for accused students.”

Most important, universities seeking to comport with the 2011 orders, which were adopted without the usual vetting by public notice and comment, have fared poorly when sued. Since 2011, accused males who say they were wrongly punished have been on the winning side of 69 judicial decisions–mostly preliminary rulings–and fewer than 50 have lost, according to my co-author, professor KC Johnson of Brooklyn College, an expert on campus due-process debates, who keeps a tally of lawsuits by students who say they were wrongly accused.

The Obama Administration’s actions on campus sexual assault were a textbook example of regulatory overreach. In the name of enforcing Title IX, it ordered thousands of universities to find an accused student guilty even if the evidence tipped only slightly (as by 51% to 49%) against innocence, impose sharp limitations on cross-examination of accusers and adopt “training” rules for campus courts.

AFT President: Betsy DeVos and Donald Trump Are Dismantling Public Education

After DeVos’ agency formally rescinded the Obama mandates with a stroke of a pen on Sept. 22, the Education Department announced that it would develop detailed replacement regulations for campus sexual-assault cases, publish them, invite public comments and then adopt final rules, probably by next fall. In the interim, it announced less-than-forceful guidance for schools on Title IX. In August, four feminist Harvard Law School professors wrote a joint letter to the Education Department urging reforms similar to those DeVos seems to be planning. But changing things on the ground will be a challenge at the many campuses that are steeped in presuming guilt.

Taylor co-authored, with KC Johnson, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books 2017)

This appears in the November 06, 2017 issue of TIME.

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Those follow-on regulations could require schools to presume that accused students are innocent unless proven guilty, to allow rigorous cross-examination of accusers, and perhaps also to grant the accused the unqualified right to appeal adverse decisions, and more.

Meanwhile, the modest improvements that DeVos included in the “interim guidance” of September 22 let universities know how to comply with the Education Department’s requirements during the time between the end of the Obama decrees and the final adoption of new, carefully considered regulations.

DeVos and her team have good reason for this two-stage approach to reforming enforcement of Title IX, the federal law prohibiting sex discrimination in higher education. She has vowed not to emulate the process used by the Obama administration in its now-notorious decrees of 2011 and 2014, when it issued dozens of pages of detailed “guidance” on Title IX compliance without prior notice and without giving the public a chance to comment.

The Obama decrees flouted basic principles of sound policymaking and, in the view of many experts, violated the notice-and-comment provisions of the Administrative Procedure Act of 1946. Catherine Lhamon, Obama’s second head of the Education Department’s Office for Civil Rights, recently derided those provisions as “essentially a popular vote.”

The Education Department’s announcement on September 22 was presaged two weeks earlier in a major address by DeVos at George Mason University’s law school, where she expressed grave concern about the unfairness of the Obama decrees and of many campus sex tribunals and declared that “no student should be forced to sue their way to due process.” Around 180 accused students have sued their schools since the Obama administration’s April 2011 “Dear Colleague” letter.

The DeVos criticisms echoed those of distinguished civil libertarians, law professors, and journalists. They have deplored the now-revoked Obama requirements that schools, among other measures, use a very low burden of proof (“preponderance of the evidence”) for branding an accused student a rapist; all but abolish meaningful cross-examination of accusers; and subject accused students to a form of double jeopardy by allowing accusers to appeal not-guilty findings.

These requirements dramatically increased the chances of finding an innocent student guilty, as scholarly research by John Villasenor has confirmed. As a group of Penn Law School professors stated, the Obama-era guidance placed “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” And as 28 Harvard law professors asserted, this led too many schools to establish procedures that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

The “Dear Colleague” letter rescinding the 2011 and 2014 guidance quoted each of these passages, emphasizing the importance of due process in a way that would have been inconceivable during the Obama years.

The frenzied reactions of many Democratic politicians and campus activists to DeVos’s carefully reasoned, balanced speech and to the September 22 guidance show how difficult it will be to replace today’s systematic discrimination against accused students with disciplinary systems that will be fair to accusers and accused alike.

The Education Department announcement included an apt quotation from one of the nearly 70 state and federal court decisions upholding (often on preliminary motions) lawsuits filed by accused students. The opinion, by Judge F. Dennis Saylor, assailed a decision by Brandeis University in which a student had been found guilty of “sexual violence” for such offenses as awakening his sleeping boyfriend with kisses.

In an understated indictment of the unfairness at the core of the Obama approach, Judge Saylor wrote: “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. . . . Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome.”

The interim guidance, which will remain in place until the Education Department conducts its notice-and-comment process and issues new regulations, points universities toward procedures designed to pursue the truth rather than presume the guilt of the accused.

Thus, for example, the interim guidance allows a college to depart from the Obama-required “preponderance” standard and to use instead the more rigorous “clear and convincing” standard of proof, if that is the standard that the school uses in non-sex disciplinary cases.

The interim guidance also gives colleges the option of allowing meaningful cross-examination, which the Supreme Court has described as “the greatest legal engine ever invented for the discovery of truth,” and of giving accused students the right to appeal without subjecting them to appeals by accusers of not-guilty findings.

But it seems likely that few colleges or universities will respond to the interim guidance by creating fairer procedures. University of California president Janet Napolitano, for example, who had castigated the Obama decrees in a 2015 article, has changed her tune since DeVos started championing due process. Napolitano claimed that DeVos was too focused on “outlier” cases of unfairness and vowed that the UC system would retain its current procedures — which one state judge compared to a “kangaroo” court — no matter what the Education Department does.

Accusers’ rights organizations roundly condemned DeVos’s move and doubtless would join their many faculty supporters in aggressively attacking any college president who chooses fairness to both accusers and accused over presuming male guilt.

If most schools, as we expect, reject the Education Department’s invitation to abandon their current one-sided policies, what will Betsy DeVos do?

We hope and believe that she and her team will issue strong new regulations specifying procedures that schools must use to qualify as fair, including those sketched above.

During the months before new regulations can be adopted, probably the greatest impact of the interim rules will be felt by university lawyers, who can no longer argue in court — as they have done with some success — that any unfairness in their procedures was mandated by the Education Department. That dog won’t hunt any more.

The interim guidelines still leave much to be desired. For instance, the Education Department continues to allow schools to use a deeply problematic, Obama-blessed system in which a single person serves as lead investigator, prosecutor, judge, and jury.

But we hope to see such flaws fixed in the final regulations. And if they are not, the courts might have the last word. In a major decision issued September 25, a three-judge panel for the Sixth Circuit Court of Appeals, including judges nominated by presidents of both parties, ruled against the University of Cincinnati because it failed to give an accused student any chance to cross-examine his accuser.

The Sixth Circuit concluded that in “he said/she said” cases that turn on the credibility of the two parties, a university’s “failure to provide any form of confrontation of the accuser made the proceeding . . . fundamentally unfair.” This was an implicit rebuke to the Obama policy and makes it more likely that DeVos will not merely permit but also require cross-examination rights for accused students.

For the most part, DeVos continues to move in the right direction, against overwhelming odds, to create a fairer system for all students.

KC Johnson and Stuart Taylor Jr. are coauthors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books, 2017).

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