Op-Ed: Education's DeVos moves colleges forward on sexual assault fairness
Soon after the 2016 election, a professional woman from the Northeast, an independent, wrote to me to explain her reluctant vote for Donald Trump. She said that in 2010, her son, then a college student, was accused of sexually assaulting a classmate; despite witnesses contradicting the woman’s story, it took painful months before he was cleared.
As an advocate for accused students, she wondered how he would have fared after 2011, when the Obama administration began pushing for stronger action on campus rape. Sally blamed the Democrats for a “hysteria” that could have destroyed her son — and was willing to make it her single issue as a voter.
Now, people who share those concerns are heartened by signals from the Trump administration. Education Secretary Betsy DeVos recently met with activists on both sides — in contrast to the Obama Department of Education, which welcomed victims’ advocates but ignored the accused — and called for a policy overhaul to ensure that everyone is protected. The outraged response proved DeVos right: Defenders of the current system have little regard for fairness. But can DeVos change things for the better?
There is plenty of evidence that enforcement of Title IX, the federal gender equity law protecting students from sexual harassment and violence, is badly flawed. Lawsuits by male students who say they were denied due process have surged, and courts are increasingly sympathetic.
This month, Colorado State University at Pueblo settled a suit from Grant Neal, a former football player punished with a multi-year suspension for a sexual assault the alleged victim denied: The accusation came from another student who noticed a mark on the woman’s neck.
In California, a “John Doe” who is suing Occidental College claims he was expelled in 2013 for a consensual drunken hook-up. While the school found that the woman was too intoxicated to consent, she was able to text the equally drunk “Doe,” ask about a condom, and walk downstairs to his room.
It’s not just conservatives and parents of accused sons who criticize campus kangaroo courts. So do liberal law professors — and feminists such as author Laura Kipnis, who believes the system railroads men while trapping women in victimhood.
Arguments on the other side, typified by some of the attacks on DeVos, can be overtly hostile to the presumption of innocence. On CNN, psychologist Peggy Drexler writes that “DeVos’s focus on helping the ‘falsely accused’ is deeply concerning,” since only 2 to 10 percent of rape accusations are false. In fact, there are no reliable numbers on false reports; but using statistics to suggest there’s no need to worry about the innocent is “concerning” indeed.
Critics link Title IX overreach to guidelines in a 2011 “Dear Colleague” letter from the Department of Education’s Office of Civil Rights to college and university presidents. (A subsequent document threatened to strip federal funds from non-compliant schools.)
Crucially, the letter recommended using a “preponderance of the evidence” standard for sexual assault complaints: the accused must be disciplined if evaluators think it’s even slightly more likely than not that the offense occurred. Some two-thirds of American colleges had used a “preponderance” standard even earlier; but larger, higher-ranked schools had typically required “clear and convincing evidence.” The “Dear Colleague” letter sent a clear message that the disciplinary process must favor the complainant as much as possible.
DeVos is widely expected to reverse the 2011 directive and endorse more balanced policies. But it’s hard to tell how much impact this will have. Some college administrators may gladly scale back an aggressive approach that invites lawsuits. Many others will keep current rules, out of conviction or fear of backlash. Blue-state legislatures and governors will likely move to have Obama-era policies such as the “preponderance” standard codified in state law.
And there is the bigger question that predates the Obama administration: Why should colleges try rape cases? Campus “justice” is often unjust to the accused, but it shortchanges victims too. Sexual assault is a crime, not a breach of discipline; expelling a rapist is a pitifully inadequate punishment that leaves him free to rape again. Jesse Matthew, who is serving several life sentences in Virginia for the abduction and murder of two young women and a brutal attack on a third, had earlier left two colleges after sexual assault complaints that were never reported to the police.
Two years ago, several House Republicans introduced a bill requiring campus sexual assault cases to be handled by law enforcement, with disciplinary measures supplementing the legal system. It went nowhere; but support from DeVos could revive such an initiative.
Of course, much of what is treated as sexual assault on college campuses — regretted alcohol-addled sex, being coaxed into going further than you intended — would not be a crime in the legal system. But that’s a strike against, not for, the campus courts: The expanding definition of sexual assault criminalizes bad sex and trivializes rape. Non-criminal but traumatic experiences can be addressed through counseling and mediation — options that are severely restricted when such experiences are labeled as sexual assault.
A Department of Education dedicated to restoring sanity on this issue could explore such solutions. It could sponsor studies to get reliable statistics on campus sexual assault, since too many surveys lump together incapacitated rape and sex under the influence. It could study the benefits of alcohol abuse prevention and assertiveness training in reducing unwanted sex — commonsense strategies decried as “victim-blaming” by ideologues.
But, besides political opposition, there is a major problem that stands in the way: Donald Trump. The president’s woman troubles (to put it as neutrally as one can) put the Trump administration in an extremely awkward spot if it is seen as weakening policies that protect women from sexual predators. And the administration’s ability to enact any agenda is hobbled by a White House mired in chaos and scandal.
If DeVos can find her way around those obstacles and get something done, more power to her.