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Betsy DeVos is right: In college sexual assault cases, due process matters

In a series of meetings earlier this month, Education Secretary Betsy DeVos signaled strong disagreement with the Obama administration’s aggressive erosion of due process protections for college students accused of sexual assault. While deploring the horrors of the offense, DeVos added that “a system without due process protections … serves no one.”

This was a welcome change from the decrees issued by the Obama-era Office for Civil Rights (OCR), which had told colleges to avoid any due process safeguards that would “restrict or unnecessarily delay the protections provided by Title IX” to accusers. Surveying the damage to fundamental fairness from the Obama-era policies, a recent study by UCLA professor John Villasenor concluded that an innocent student has as much as a 1-in-3 chance of being found guilty by today’s campus sexual assault tribunals.

The Obama policy proceeded from the counterfactual claim that sex crimes — which are no doubt a serious problem — were sweeping through the nation’s campuses like an epidemic. (In fact the number declined dramatically between 1997 and 2013.) With vocal support from President Obama and Vice President Biden, OCR used this myth to reinterpret the Title IX, the statute barring sex discrimination at schools that receive federal funds. The Obama-era OCR ordered universities to use the lowest possible standard of proof (preponderance of evidence, or 50.01%) and allow accusers to appeal not-guilty findings. It also discouraged colleges from allowing cross-examination of accusing students; and urged institutions to deny accused students any right to a hearing by giving all power to a single bureaucrat to act as investigator, prosecutor, judge and jury.

During DeVos’ meetings, the accusers’ rights organization Know Your IX organized a protest outside the Department of Education, demanding a blanket retention of Obama’s policies. The group was joined by the leading congressional foe of campus due process, Senator Kirsten Gillibrand, D-N.Y. She maintained that “if Secretary DeVos rolls back these protections” — each of which had placed a thumb on the scale to increase, sometimes dramatically, the chance of a guilty finding — “justice will not be possible.” This came from a senator who had publicly described former Columbia student Paul Nungesser as a “rapist” even after he was cleared by both the university and the NYPD.

Ironically, as Gillibrand was protesting outside the Education Department, a New York appellate court upheld a lawsuit by an accused student against Skidmore College, located in the upstate New York congressional district that the senator had once represented. In October 2015, the Skidmore accuser told college officials (not the police) that a male student had forced her to perform oral sex 21 months previously As at most colleges since implementation of the Obama-era policies, Skidmore’s adjudication process was geared toward a guilty finding. The accused student had no right to cross-examine his accuser, and he wasn't told the specifics of the allegations against him. The five-judge New York appellate panel also faulted the college for giving weight to “little more than gossip” about the accused student. The judges ordered Skidmore to re-admit him and expunge his disciplinary record.

Skidmore was the 53rd college or university to find itself on the losing end of a court decision in a lawsuit filed by an accused student in the past four years. This remarkable body of law — virtually ignored by the news media — is especially striking given the traditional reluctance of courts to second-guess college disciplinary actions.

A system in which a wrongly accused student’s best chance of vindication comes after his college improperly brands him a rapist, and only if he can afford an expensive and protracted lawsuit, is a travesty of justice. Moreover, despite some suggestions by defenders of Obama policies that colleges have responded to these court decisions by creating fairer procedures for accused students, the reverse has been far more typical.

Amidst legal challenges, schools including Brown and Swarthmore adjusted their policies to make it harder for innocent students to win vindication, by scaling back the rights promised to accused students. Reflecting this mindset, the National Association of College and University Attorneys published a May 2016 research note urging colleges and universities to “promptly destroy” documents such as “e-mails … staff notes, … notes of hearing participants during a disciplinary hearing, drafts of hearing outcome reports, and other such working papers,” all of which “might actually prove very useful to a plaintiff’s lawyer” in a subsequent lawsuit.

In a March 2016 ruling against Brandeis University, U.S. District Judge F. Dennis Saylor wrote, “If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision. Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome, and a fair and neutral fact-finder, not predisposed to reach a particular conclusion.”

The last six years have shown that furious condemnations will greet any effort to establish a fairer campus system, one that will protect the rights of innocent accused students as well as of victims. But fairness is what we need. And while a shift in federal policy will not, alone, restore justice on campus, it’s a necessary first step.

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