Education Secretary Betsy DeVos has made clear her intention to correct one of the Obama administration’s worst excesses—its unjust rules governing sexual misconduct on college campuses. In a forceful speech Thursday at Virginia’s George Mason University, Mrs. DeVos said that “one rape is one too many”—but also that “one person denied due process is one too many.” Mrs. DeVos declared that “every student accused of sexual misconduct must know that guilt is not predetermined.”
This might seem like an obvious affirmation of fundamental American principles. But such sentiments were almost wholly absent in discussions about campus sexual assault from the Obama White House and Education Department. Instead, as Mrs. DeVos noted, officials “weaponized” the department’s Office for Civil Rights, imposing policies that have “failed too many students.”
In 2011 and 2014, the OCR issued “guidance” letters radically reinterpreting Title IX, a statute prohibiting sex discrimination at institutions receiving federal money. The highest-profile of these directives required schools to adjudicate sexual-misconduct claims under the low “preponderance of the evidence” standard of proof.
But as Boston College’s R. Shep Melnick has noted, that was “just a minor part of the OCR’s procedural requirements.” Worse were “the agency’s rules on cross-examination and appeals; its informal pressure on schools to institute a ‘single-investigator model’ that turns one person appointed by the school’s ‘Title IX Coordinator’ into a detective, judge, and jury; and the intense pressure for schools to show they are ‘getting tough’ on sexual assault.” As Mrs. DeVos observed: “It’s no wonder so many call these proceedings ‘kangaroo courts.’ ”
The OCR’s guidance letters were not even formal regulations, so that the department bypassed the public notice and comment rule-making process required by the Administrative Procedure Act. Mrs. DeVos promised that wouldn’t happen again: “The era of ‘rule by letter’ is over.”
To be sure, withdrawing the Title IX guidance, as the department is now expected to do, would not be enough to create a fairer system on campus. In a just-released study, the Foundation for Individual Rights in Education found only two of the nation’s 53 leading institutions (Cornell and the University of California, Berkeley) earned a score of greater than 60% for fair procedures in their Title IX tribunals.
Under Obama administration pressure, schools dramatically increased personnel in their Title IX offices, creating entrenched bureaucracies that will aggressively resist reform. And several states, including California and New York, have enacted laws designed to make it even more difficult for accused students to defend themselves. Thus the system will remain rigged against accused students until the Education Department issues specific, detailed rules to ensure fairness.
Still, discarding the Obama-era guidance would have two immediate salutary effects. First, it would eliminate one of universities’ standard defenses against lawsuits by accused students, which is to claim that they were merely doing Washington’s bidding.
Second, it would allow the department to implement Title IX policy through new, carefully considered regulations after a period of public notice and comment. The FIRE study identifies provisions that would be necessary to achieve a minimum of fairness in campus tribunals—the presumption of innocence, clear notice of alleged violations, sufficient time for the accused student to prepare his defense, impartial fact-finders, access to all relevant and exculpatory evidence, the right to cross-examine the accuser, a meaningful right to legal representation, and a meaningful right to appeal.
As four Harvard law professors— Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet and Nancy Gertner —argued in a recent article, a fair process requires “neutral decisionmakers who are independent of the school’s [federal regulatory] compliance interest, and independent decision makers providing a check on arbitrary and unlawful decisions.” The four had been among more than two dozen Harvard law professors to express concerns about the Obama administration’s—and Harvard’s—handling of Title IX. So too had 16 University of Pennsylvania law professors, as well as the American Council for Trial Lawyers.
Due process is, or should be, neither a liberal nor a conservative issue, and Mrs. DeVos is hardly alone in recognizing the shortcomings of the policy she inherited. But the accusers-rights organizations that dominated Title IX policy during the Obama administration have reacted with outrage. Laura Dunn, executive director and founder of SurvJustice, deemed the mere news of the speech a “winter” for Title IX. Another group, Know Your IX, demanded that Mrs. DeVos “enforce and support Title IX.”
In fact, on Thursday Mrs. DeVos made clear her determination to enforce Title IX fairly—to combat the new normal of discrimination against accused students as well as any residual discrimination against accusers.
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