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BETSY DEVOS: One rape is one too many. One assault is one too many.
AILSA CHANG, HOST:
Education Secretary Betsy DeVos is doing what she promised.
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DEVOS: One person denied due process is one too many.
CHANG: She's rescinded the Obama-era policy on how colleges should investigate sexual assaults. She says among other things, the old guidance was unfair to those accused of sexual assault. As soon as she outlined her plans earlier this month, there was a fierce backlash.
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UNIDENTIFIED PROTESTERS: (Chanting) Stop Betsy DeVos. Stop Betsy DeVos. Stop Betsy DeVos.
CHANG: To create a new policy, DeVos has said she'll go through a formal public comment process, something the Obama administration did not do. And our next guest, a feminist law professor at Harvard, says DeVos is actually starting a necessary conversation.
JANET HALLEY: Institutions of higher education have a legal and moral responsibility to address sex discrimination on campus. It's not an option to walk away from these programs and ditch them and pitch it all off to law enforcement. Instead we need to look at them and figure out how we can make them fair for all students.
CHANG: Janet Halley says that for instance, accused students rarely get to see the complaints against them and that over the last several years, the definition of sexual misconduct has been interpreted too broadly. I asked her for some examples.
HALLEY: A man peeing in public, a person putting a hand on somebody else's body on a crowded dance floor, a partner sleeping in bed with a long-term partner, kissing the back of that person during the night while they're asleep - these are all actual cases that have been held to constitute wrongful conduct under Title IX policies.
And I think we could all agree that these are very, very common behaviors. They're not severe, and they should not cause a person to have to defend their right to stay in school. It might be that an apology is due. Something's clearly wrong, or we wouldn't have a complaint. But the idea that we would squander the immensely valuable resource of Title IX on cases like that - it means that we have arbitrary cases.
CHANG: Are you concerned that pushing back on some of these policies on campuses as - saying that they're unfair to the accused - are you concerned that that will cause an overcorrection in the other direction? I mean it took a long time to get schools to take sexual assault seriously. Is being now very vocally concerned about the rights of the accused - could that tilt the balance in the other direction?
HALLEY: We've thought about that long and hard. And it could happen that we overcorrect in the other direction. And that's why I'm saying that schools and universities have a moral and legal responsibility to deal with this issue, why I'm recommending due process, which is aspirationally equal in its treatment of both sides, rather than trying to develop a new system that's unfair as we had been in the past to accusers. I will not be supporting Betsy DeVos if her response to this criticism builds unfairness to the complainant.
CHANG: But do you have faith that the Trump White House will get that balance right?
HALLEY: No. I'm very concerned by several of the things that Betsy DeVos said. For instance, she said colleges and universities should go back to what they do best, education, which strongly suggests to me that she may be considering mandatory referral to law enforcement. I think that's a bad idea from a victim's point of view. It's a horrible idea from the accused point of view. She said that the problem is false accusations. I don't see that. The concern is cases that are so complex, so murky. That's where the difficulty really lies in this area.
CHANG: Why is it so hard to find a middle ground? On one hand, we have people who say schools need to crack down even harder on sexual assault and sexual harassment on campuses. On the other hand, there's this idea that schools shouldn't even be involved in making these decisions. Why is a middle ground so elusive?
HALLEY: I think that people come into this debate on a side. They come in on the side of survivors. They come in on the side of the accused. I'm saying, let's try to be on the side of all the students and from that point of view think about what we would want these programs to look like. And I think if we thought that way, we would be doing very different things than we are doing today.
CHANG: You're a feminist scholar at a liberal Ivy League law school. Have you gotten pushback from people for taking the position you're taking?
HALLEY: Oh, absolutely. This is a very hotly contested issue. And if you can't take the heat, you should keep out of the kitchen. I've been called a rape denier. Students have said that by raising the questions I'm raising, I'm creating a hostile environment for them at my law school.
But I keep coming back to it because I think it's so important to have a voice, a feminist voice that believes that sexual misconduct is a serious, serious wrong that schools must address and that believes that doing that by kicking innocent students out of school merely creates a new class of victims. We've got to do right by all the students, not just one side or the other.
CHANG: Janet Halley is professor of gender and the law at Harvard Law School. Thank you very much for speaking with us.
HALLEY: Thank you, Ailsa.
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