Will Betsy DeVos fix Obama’s toxic campus sexual assault policy?
The much-maligned Betsy DeVos has a chance to fix one of Barack Obama’s biggest missteps — his administration’s encouragement of on-campus kangaroo courts to review sexual-assault allegations at colleges. The question is, will the education secretary and her bumbling team get in the way of a fairer outcome?
The president who appointed DeVos has little credibility on the issue, having bragged on tape about forcibly grabbing women by their genitals. DeVos, who swiftly revoked guidelines supporting transgender students’ ability to use the bathroom, hasn’t established herself as paragon of empathy either. In gathering input about campus sexual assault, DeVos also raised eyebrows by inviting a couple of dodgy men’s rights organizations in for a talk.
Still more divisive, though, were the comments that the head of DeVos’s civil rights office made to The New York Times last week. Citing no research, Candice Jackson said that 90 percent of campus sexual assault allegations “fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX [civil rights] investigation because she just decided that our last sleeping together was not quite right.’ ” Jackson later apologized for being “flippant.”
If DeVos wants to orchestrate a change of policies, this isn’t the way to win over critics. Which is a shame, because the now-famous “Dear Colleague” letter that Obama’s Department of Education released in 2011 has been toxic for civil liberties on campus.
In a well-intentioned effort to shield female students from harassment, the letter demanded tougher action against sexual violence. University administrators took the letter to mean they’d been going too easy on the accused.
Many institutions responded by lowering the standards of evidence necessary to deem a student responsible for sexual assault. Some, including Harvard and Brandeis, limited due process in other ways — for instance, by whittling down disciplinary policies that once had provided for formal hearings.
Because schools keep disciplinary proceedings confidential, the impact of such changes is hard to track. But the post-“Dear Colleague” policies have been in place long enough to yield a paper trail in the federal courts and elsewhere. It’s clear that, even as some victims of rape still hesitate to come forward, schools are in some cases punishing students for sexual encounters that — however disconcerting, upsetting, or regrettable participants deemed them to be afterward — were entirely consensual when they occurred.
At Brandeis, a student identified as “John Doe” in court papers, was formally disciplined for kissing his then-boyfriend while they slept and ogling him when they showered together during a 21-month relationship. (Being seen unclothed, experts say, is a common outcome of agreeing to shower with a romantic partner.)
The boyfriend filed a complaint six months after their breakup, at a point when tensions were growing between them.
A judge who later reviewed the case noted that the accused student had no right to call or cross-examine witnesses, or even review the evidence against him.
Fortunately, the excess of the Brandeis case weighed heavily on an American Bar Association task force that recently reviewed the issue. In a June report, the panel called upon schools to hold hearings, list what evidence they’ve collected, take questions from accusers and accused during witness testimony, and leave final disciplinary decisions up to a diverse board of three or more people. Task force members were too polite to say so, but their report is a far-reaching indictment of the rules so many campuses have adopted since 2011.
The ABA panel didn’t go far enough. It rejected the idea that law enforcement should be involved in each and every case. Sexual assault is a crime. Civil and criminal proceedings may come to different conclusions about someone’s culpability, but leaving police out is a mistake. They have investigative expertise that a university bureaucracy doesn’t, and they have the power to take proven sexual predators off the streets.
Somehow, existing rules for campus tribunals have gained the enthusiastic support of progressives, who might otherwise insist on criminal and civil defendants’ right to due process.
For any reforms to stick, campus communities need to understand that revisiting the “Dear Colleague” letter doesn’t have to be part of some ideological crusade on DeVos’s part, or the result of a misplaced tolerance for sexual predators. It’s a matter of deciding which rules best protect the rights of everyone involved and help an investigation get closest to the truth.