Trump’s Revised Campus Sexual Assault Rules Are Surprisingly Popular Among Feminist Legal Scholars

Feminist supporters argue the new system better supports due process

Nancy Gertner
Professor Nancy Gertner is among the Title IX revision's surprising supporters.
Photo by Paul Marotta/Getty Images
By Kayla Kibbe / June 25, 2020 10:14 am

When Education Secretary Betsy DeVos overhauled Obama-era rules regulating campus investigation into sexual assault allegations, giving more power and protection to the accused party, the move was met with predictable outrage and was denounced by a variety of unions and organizations, from Democratic senators to the National Organization for Women.

According to a recent New York Times article, however, the new Education Department rules have actually found surprising support among an influential group of feminist legal scholars.

“The new system is vastly better and fairer,” said Professor Janet Halley, who specializes in gender and sexuality at Harvard Law School. “The fact that we’re getting good things from the Trump administration is confusing, but isn’t it better than an unbroken avalanche of bad things?”

This circle of feminist allies support DeVos’s revision as a correction of the due process breaches some criticized in the Obama-era Title IX system. While the Obama administration directives were widely praised for centering on the accuser, rolling back protections for the accused and broadening the criteria for sexual harassment, some have criticized the approach as unfair.

Among those critics is Justice Ruth Bader Ginsburg, who has argued that the Obama-era regulations deny the accused due process and a fair hearing.

These sentiments are shared by the current circle of feminist legal scholars backing DeVos’s overhaul. “I’m a feminist, but I’m also a defense attorney who recognizes the importance of due process,” said Prof. Nancy Gertner, a retired federal judge and lecturer in law at Harvard.

Gertner added that while she was admittedly skeptical of DeVos’s motivations in overhauling the Title IX regulations, she ultimately saw too many flaws in the Obama-era approach.

Gertner’s denouncement of the Obama regulations hasn’t been without criticism from fellow feminists, however. In 2015, defense attorney Wendy Murphy penned an open letter to Gertner, writing, “If you can’t stop using your self-described status as a feminist to hurt women, then please just stay silent.”

Gertner, however, stands by her support of due process. “This notion that I am a ‘so-called feminist’ because of my views on due process?” she told the Times. “I call that the fascism of the women’s movement.”

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