In December 2018—over a year after the Me Too deluge began, and shortly after Brett Kavanaugh’s confirmation to the Supreme Court—Kathleen Parker wrote in the Washington Post of a worrying trend. Many men in finance and other industries, she said, were adopting the “Pence Rule,” the vice president’s insistence that he avoid time alone with any women besides his wife. These men feared, or purported to fear, a false accusation of sexual harassment. According to Parker, this development was an “inevitable” consequence of Me Too. And the reason for it was not sexism, paranoia, or sensationalist reporting. It was, instead, the “erosion of due process” for accusations of sexual harassment, rendering men afraid that their innocence would not protect them. “In many ways,” she wrote, “this is all new terrain for us societally: How do we balance the right of every individual to be believed innocent until proven otherwise, while also giving accusers a platform to be heard?”
Perhaps issues of fair process were new to Parker’s column. But the question itself is very old. How to balance the rights of the accused and those who say they have been harmed is, quite literally, an ancient problem, one that has shaped the development of our legal systems from the beginning.
And here’s the key: it isn’t a question unique to sexual harassment. Governments, workplaces, schools, political organizations, and social clubs all get called upon to investigate misconduct of all varieties. Employees get into fights, steal company property, and call each other racial slurs. Members of the local charity board embezzle funds. Political organizers punch each other in the face over strategic disagreements or romantic entanglements. Students beat each other up, vandalize campus landmarks, and taunt classmates with disabilities. In 2007, a student at my alma mater repeatedly threatened to kill his roommate, leaving messages in fake blood on their shared dorm wall.
In short, people hurt each other. Their communities are then tasked with figuring out what happened and what to do next. Every one of these examples demands we answer Parker’s challenge: How do we respect fair process while giving victims the chance to come forward? None of this is unique to Me Too. The reasons I’ve given for why process matters for sexual harassment apply to every other kind of misconduct as well. Fair process is important for sexual harassment allegations because it is important for all allegations.
Indeed, many of the concerns that have been raised about the treatment of alleged harassers speak to systemic issues that aren’t specific to harassment at all. Chief among these is the precarious nature of employment in the United States. Critics like Parker assume that accused harassers are often fired without any fair investigation. I have no sense of whether that’s true. But if it is, that’s only possible because most workers are utterly unprotected from arbitrary termination, thanks to the shrinking membership of labor unions over the last half-century and the “at-will” employment arrangements for almost all nonunion employees. That’s not a story about Me Too. That’s a story about work in America.
The same goes for anxieties about student discipline. Many critics express shock at how few protections students accused of sexual harassment have—or at least had, until Betsy DeVos stepped in (more on her in a moment). But these students were no less legally protected than any of their classmates accused of other forms of serious student discipline. In some cases, even before DeVos, they had more legal rights. The real problem is with the paucity of law governing student discipline in general, not student discipline for one particular offense.
Yet our national conversation about harassment so often forgets this. Critics talk about protecting workers accused of sexual harassment rather than advocating to end at-will employment or revitalize the labor movement. Policymakers demand new school disciplinary procedures for sexual harassment, when they should be overhauling school disciplinary procedures for all misconduct, period. And, almost always, they demand that these new procedures make it uniquely difficult to report and prove allegations of sexual harm. They advocate for extra obstacles, like higher standards of evidence and more intrusive methods of questioning, beyond those faced by victims reporting other forms of misconduct. I refer to this as “exceptionalism”—an assumption that sexual harassment allegations should be subject to different, and usually more demanding, procedures than all other forms of misconduct.
This approach flies directly in the face of a core principle of due process: proper procedures do not depend on the specific allegation. We scale procedural protections to account for what’s at stake for the accused and other interested parties. We do not adjust them based on what specific kind of wrongdoing the accusation concerns. And as I’ll explain in the next chapter, all the common reasons given to break that rule for sexual harms—for example, a belief that these claims are uniquely hard to prove—don’t hold water.
Exceptionalism also makes the job of figuring out a fair process much more difficult. When we pose the question as “What procedures are appropriate specifically for sexual harassment?” we have to create an entire system out of whole cloth. If, instead, we ask, “What procedures are appropriate for interpersonal harms?” we have an easy place to start: the systems our institutions already use to deal with misconduct in general. If your group has an existing process for dealing with allegations of other kinds, you can build from there. You might need to add special training, or a couple of tweaks, to make sure that the process works for sexual harassment and other sensitive matters. But there’s no need to start from scratch.
What’s more, when we design a procedure that’s meant to address sexual harassment allegations alone, it’s too easy for sexist biases to determine our choices. All of us, even avowed feminists, bring a specific set of myths and assumptions to conversations about sexual harms. As a culture, we often believe (wrongly) that such allegations are particularly unlikely to be true, that women are vengeful liars, that men are frequently the hapless victims of false allegations. We think rape is a crime, and only a crime. So if we create a process just for allegations of this one particular kind, all those myths and biases will infect our design. We may decide we should make it uniquely hard to prove sexual harassment allegations because—consciously or not—we think sexual harassment allegations are uniquely deserving of skepticism. We may make choices that, if we knew all allegations would be vetted in the same way, would seem obviously wrong.
And thinking about process in the context of sexual harassment alone makes it harder for us to recognize these bad policies when we see them. Over the years that I’ve worked on these issues, I’ve seen many proposed procedural “reforms” aimed exclusively at sexual harassment allegations, changes that would tilt the scales dramatically in one direction: protecting the accused by disadvantaging victims. That policymakers and critics do not insist on the same reforms for other kinds of accusations should be a tell. But if those points of comparison are outside our frame of reference, the exceptional nature of these proposals is harder to recognize.
THERE IS PERHAPS no better example of exceptionalism than the Title IX regulations that Trump’s Department of Education issued in 2020. As I write, litigation about these regulations (including a suit for which I serve as counsel) is still ongoing; by the time this book is published, I hope they will be overturned in court or rescinded by the Biden administration. But at the moment, they are the law of the land. And even if they go away in the near future, they are worth looking at, since they illustrate so clearly the many problems that exceptionalism creates.
The new regulations make it harder for student victims to hold schools liable for mishandling sexual harassment. With a few exceptions, they excuse schools from addressing sexual harassment unless it is both “severe and pervasive”—that is, both very bad and very frequent. They allow schools to ignore sexual harassment that was not formally reported to the correct official. They also limit the geographic scope of school responsibilities, restricting them just to incidents that occurred on school grounds or on an official school trip. If a student was raped by her teacher or classmate across the street from the school, for instance, and now had to share a classroom with her rapist, the Department of Education no longer requires any action from the school. And if a school does investigate a report, the new regulations require special protections for students and staff accused of sexual harassment. In large part, the burden of those new protections falls on victims, with rules that make it uniquely hard to make and then to prove an allegation of sexual harassment.
The rules were published by Education Secretary Betsy DeVos, the right-wing billionaire whose résumé was startlingly devoid of relevant experience when she became the most important education official in the country. DeVos had never worked for a school and was unable to answer basic questions about education policy in her hearing. The closest she had to qualifications were her large donations to right-wing groups that champion privatizing education and rolling back civil rights. After alienating Republican senators with her opposition to public schooling and ignorant remarks about disability rights, DeVos was the first cabinet member in history confirmed not by the Senate itself but instead by the vice president’s tie-breaking vote. At the start of her tenure, she hired as her top civil rights official Candice Jackson, an anti–affirmative action advocate who (incorrectly) told a New York Times reporter that “90 percent” of campus rape allegations were illegitimate, brought by women who, after a breakup, “just decided that [previous drunk sex] was not quite right.”
DeVos and Jackson styled their Title IX rules as a response to the Obama administration’s 2011 Dear Colleague Letter, which they said inadequately protected the rights of the accused. As noted earlier, this diagnosis was off. The Dear Colleague Letter did not disturb any student discipline rights guaranteed by the Constitution or state law. If advocates believed that those protections were insufficient—as I generally do—that was a problem with student discipline law in general, not with a policy guidance about sex discrimination. There was, after all, no reason to grant extra rights to students accused only of one particular kind of misconduct.
Yet when Trump came into office, that’s exactly what his Department of Education set out to do. The new Title IX rules force schools to treat sexual harassment allegations in a different way from all other student discipline. For example, the regulations require schools to ignore any statements made by the respondent if he refuses to participate in a hearing—which he can do while retaining the right to cross-examine the complainant and witnesses. That means a student who admitted to raping a classmate in a text to a friend, or even on video, can block the school from considering that evidence simply by refusing to answer its questions. This is simply not how evidence ever works in America. Indeed, the nonsensical rule goes well beyond protections for criminal defendants facing incarceration, whose own past statements are admissible regardless of whether they testify. And it certainly goes beyond any right afforded elsewhere in student discipline. As a result, a student who was sexually harassed has a much harder time proving her claim than a student hurt in any other way. That is exceptionalism at work: a process built only to handle allegations we collectively regard as suspect is prone to adopt bizarre and novel protections for the accused. It is difficult for me to imagine that if the rule were applicable to anything other than sexual harms, anyone would think it was a good idea.
The new regulations also require schools to hold hearings where the victim can be cross-examined directly by a representative of the accused student. Schools are forbidden from using a common model approved by nearly all courts and preferred by many institutions: a hearing at which students would submit questions to one another through a presiding panel, rather than directly. Such a model, apparently, is good enough for students facing other disciplinary charges—but not for those accused of sexual harassment.
Thanks to advocates’ efforts, one particularly egregious provision was abandoned before the regulations were finalized. Under it, a school couldn’t use a lower standard of evidence for sexual harassment than it did for any other conduct violation that might result in the same sanction (e.g., suspension). But even if the school used a low standard of evidence for all other student conduct, it was still allowed to use a higher standard for sexual harassment alone. That is, inconsistency was allowed only if it resulted in a higher standard for sexual harassment, not a lower one. As a result, many victims of sexual harassment would have been required to provide more proof than a classmate who reported any other kind of wrongdoing, including closely analogous harms like nonsexual assault and racial harassment.
The proposed rule ignored the good reasons why schools sometimes used different standards of evidence in different contexts. Most schools use one of two standards for student discipline: “the preponderance of the evidence” or “clear and convincing evidence.” Preponderance is the lower standard of proof; as we have seen, it is the one used in virtually all civil trials, ranging from slip-and-fall lawsuits to the wrongful death suit against O. J. Simpson. It puts the two parties on a level playing field: the decision-maker adopts whatever conclusion is supported by most of the evidence. School professionals prefer this preponderance standard for student-versus-student cases because it equally values both students’ educations. After all, a decision not to suspend one student, or restrict their movement through campus, might force the other to drop out. When some schools do use the higher “clear and convincing evidence” standard of proof, they might reserve it for harms like cheating and vandalism, offenses that are primarily “against” the school rather than another student. The administration can afford to tilt the scales against itself and carry a heavier burden; if it loses, it will suffer far less than a student victim who could not prove their case. The inconsistency is purposeful, rational.
But under DeVos’s proposed rule, if a school used “clear and convincing evidence” as the standard for any disciplinary issue with similar consequences, for either students or staff, it would have to use the same standard for sexual harassment. DeVos’s explanation for forcing this onto schools? The supposed “heightened stigma” that attaches to allegations of sexual harassment. As readers will recall, no matter whether or not such stigma is real, it is legally irrelevant. Tellingly, DeVos expressed no concern for societal biases against victims of sexual harassment, or the existing barriers to reporting sexual violence, which would only be further entrenched by the new policy.
This is another crucial problem with exceptionalism: it stigmatizes sexual harassment victims. When policymakers implement heightened procedural protections only for people accused of sexual harassment, or when critics demand the same, they send a clear message: Sexual harassment allegations are uniquely dubious. People who come forward as survivors are uniquely deserving of our suspicion. And communities absorb these lessons. Those views make it harder for survivors to seek the support they need, including from friends and family, and to pursue justice how they see fit. The result is a vicious cycle: rape myths promote exceptionalism, which promotes rape myths, which promote exceptionalism yet again.
Imagine a student with two friends who are both brought up on disciplinary charges. One is alleged to have bullied a classmate; the other is accused of similar conduct that includes sexual comments, and so constitutes sexual harassment. The first goes through the school’s normal disciplinary procedure. The second is provided an array of additional rights and protections in a more formal, drawn-out process that requires more convincing evidence from the victim. Watching those two separate tracks, the student may internalize the lesson that sexual harassment allegations and those who make them (mostly women) should be treated with particular skepticism—the kind of stereotype that a discrimination law should combat, not promote.
AT THE SAME time DeVos was drafting her final regulations, Missouri Republicans pushed legislation that would have granted additional rights to college students facing disciplinary measures—but only if they were accused of sexual assault. As originally drafted, the bill would have allowed those students to introduce into the proceedings any and all information about their alleged victims, including their sexual history and preferences. Schools would be powerless to exclude these or other potentially prejudicial and irrelevant details. What’s more, students accused of sexual assault would have the right to appeal a college’s disciplinary decision directly to an outside judge. The school would be forbidden to institute sanctions until that appeal was complete. (The original complainant would not be allowed any appeal; nor would students accused of any other type of wrongdoing.) And after all that, students accused of sexual assault would have a special right to sue not only their schools for any procedural errors, but their alleged victims for filing a report in the first place.
The bill was bad policy, period, for any kind of discipline. Courts and tribunals of all kinds exclude certain evidence to make sure decision-makers aren’t influenced by information that may appeal to their biases but has no relevance to the question at hand. And the threat of a retaliatory lawsuit would surely discourage many victims from coming forward. Think about it: Would you ever report if you knew that, should a court decide you lacked enough evidence, you would have to pay your rapist? That’s the reason why the law tries to protect victims from those risks. For example, you cannot be sued for reporting a crime to the police, even if they decide not to move forward with the case or a jury acquits, unless the accused can prove you did so maliciously.
I also think that setting up a direct appeal to a judge probably would be unwise. There are good reasons why college discipline is not generally subject to this kind of immediate external oversight. (Students can usually sue if the school broke a law in the course of its discipline—for example, if it didn’t use the correct procedures—but not simply because they disagree with the result.) Direct judicial appeals would further lengthen the timeline of what is supposed to be an internal adjudication, possibly until well after both students had graduated. That would frustrate the whole purpose of student discipline. And that’s to say nothing of the inequality of providing an appeal to the respondent but not the alleged victim.
But even if someone could make the case for the proposed law’s provisions, there was no reason to make them available to only students accused of sexual harassment. Students accused of other kinds of misconduct should have shared all the bill’s protections as well. If a particular procedure is necessary for people accused of sexual harassment, it’s also necessary for people facing other allegations that can carry serious consequences. Either a protection should be available in all cases, or, as with this law, it is not actually necessary to begin with.
As it turned out, the legislation was developed by a lobbyist who started a dark money group devoted to changing school harassment policies after his son was expelled from Washington University in St. Louis for sexually assaulting a classmate. If the original bill had succeeded, the young man’s case would have been appealed to an administrative commission where his mother was a presiding judge. It’s hard to see the family’s lobbying as anything more than an attempt to buy their kid’s way back into college. In that light, it’s telling that they did not try to “reform” student discipline writ large. They decided that legislators would be more likely to vote for these reforms if they applied only to sexual assault, rather than to other forms of discipline as well. That is, the family assumed legislators would agree that students accused of sexual harassment deserved special protections. They banked on exceptionalism.
ONE LAST PROBLEM with exceptionalism: it ensures that advocacy and policy change leave out the vast majority of people who need greater reforms and protections. Intense national interest in people accused of sexual harms has not translated into concern for their colleagues, classmates, and neighbors facing unfairness related to allegations of other kinds. Why hasn’t concern about men being fired for sexual harassment without an investigation translated into support for general “just cause” laws, which forbid employers from firing a worker without a good reason and evidence to back it up? And why hasn’t concern about student discipline for sexual assault extended to students who face discipline for other kinds of misconduct? If advocates for the bad Missouri bill had been right that their proposals were necessary, why only offer these rights to students accused of one particular kind of harm? Why deny them to students who face equally serious disciplinary consequences for a fistfight or for setting their dorm on fire?
An obvious rejoinder to this objection is that it’s better to promote good policy selectively than not at all. I’m sensitive to the charge of “whataboutism,” a common strategy debaters use to deflect criticism. “You don’t like this? Well, what about that other problem?” Usually the answer is simply that, as a matter of practicality, we must be allowed to work on specific issues, or particular parts of an issue, because we cannot save the world in one fell swoop. And it’s true that consistency is only one of many virtues. If DeVos had written Title IX rules that ensured a smart disciplinary process for sexual harassment, fair to both victims and the accused, I think I would have begrudgingly accepted them. I would have greatly preferred a law or regulation that guaranteed the same procedural rights to all students, regardless of their alleged offense, and avoided promoting stereotypes of sexual harassment victims. But if that weren’t an option, I can’t imagine battling to overturn a narrow but otherwise well-designed regulation.
That doesn’t mean that exceptionalism is wise, though. And it doesn’t only hurt victims. The way exceptionalism restricts the benefits of increased interest in fair procedures only to people accused of sexual harms is damaging to others, too.
DeVos, again, provides an infuriating illustration. As we have seen, her Department of Education revoked Obama’s Title IX policy guidance—the Dear Colleague Letter—on the basis that it supposedly didn’t provide enough protections to the accused. In 2018, she also revoked a different Obama-era policy letter, known as the “Discipline Guidance.” That guidance document explained the kinds of racially discriminatory discipline practices that the Department of Education and Department of Justice saw as violating Title VI, a civil rights law that prohibits a wide range of discrimination, including racial bias in schools. The guidance also provided suggestions for policies and practices schools could adopt to avoid discriminating against students of color in their student discipline. These included establishing clear rules and procedures, limiting the role of school police officers in routine student discipline, and collecting data about who the school was punishing for what, to identify any troubling patterns.
Without question, the Discipline Guidance was sorely needed. The academic year before DeVos revoked the guidance, Black students in DC’s public schools—in her backyard—were more than five times as likely to receive out-of-school suspensions as their white peers. Before the Discipline Guidance, the rates had been even worse. So, why would DeVos’s Department of Education—which claimed, in the context of Title IX, to care deeply about fair discipline—rescind the Title VI policy guidance?
The answer is easy: DeVos and her colleagues cared about fair process when they imagined a white college man accused of sexual assault—falsely, of course—but not when it came to a young Black kid suspended for violating the dress code or being late to school. And their hypocrisy on student discipline wasn’t subtle. For instance, Hans Bader, who’d worked for DeVos as a senior official at the department, published a letter in the New York Times claiming that the new Title IX regulations were necessary to protect Black students from disproportionate punishment. Yet he had long waged war against the Title VI Discipline Guidance, publicly insisting that Black kids were punished more often not because of racism but because they misbehaved more often—which is decidedly not true. In other words, Bader was only concerned about disproportionate discipline of Black students when he could use those concerns to roll back the rights of sexual assault survivors. It is hard not to conclude that DeVos’s department only valued fair process if it benefited white people. That attitude was shared throughout the Trump administration as a whole, which was staffed by ideologues deeply committed to protecting white men’s dominance and impunity. The same month DeVos published the new Title IX regulations, Trump himself threatened anti-racism protesters in Minneapolis with extrajudicial killing—perhaps the most profound violation of due process imaginable.
Given these leanings, the hypocrisy of some conservatives regarding DeVos’s abandonment of the Discipline Guidance document was not surprising. I was distressed, though, not to hear more outcry about it from the (mostly white) prominent critics on the left who had worried about Obama’s Title IX efforts. They had loudly critiqued the sloppy sexual harassment procedures that some schools adopted after the Title IX Dear Colleague Letter, denouncing them as ripe for racially disparate outcomes. But they were silent when DeVos revoked the Title VI Discipline Guidance. Where were their op-eds expressing grave concern? Did they think discriminatory discipline only mattered if it was for sexual harassment? I had expected that from Bader, but not from liberal professors and lawyers. After all, racial disparities are certainly not a problem unique to sexual allegations. Although we don’t have particularly reliable national data on discipline rates for these offenses, what we do have suggests that racial disparities are less pronounced in connection with sex-based harassment and bullying than other offenses. According to the Department of Education’s data, during the 2013–14 school year, Black boys nationwide were one and a half times more likely to be disciplined for sex-based offenses but three times more likely than their white male peers to be disciplined in general.
We obviously should care about any racial disparities in student discipline. The data just shows there is no reason, as a matter of racial justice, to focus on sexual harassment discipline alone. But somehow, that’s just what those liberal critics had done, decrying potential racism in sexual harassment proceedings while ignoring DeVos’s decision to unambiguously permit racism in student discipline broadly. And we needed their voices. Had they spoken out in defense of the Discipline Guidance, perhaps their objections would have registered with national media—which mostly ignored the story as it unfolded, stymieing advocacy efforts. The liberal critics’ silence shows how exceptionalism hurts not only the victims of sexual harassment but everyone who would benefit from fair process.