How to See Justice Done on Campus Sexual Assault
On Thursday, Department of Education Secretary Betsy DeVos denounced the controversial campus sexual assault adjudication guidelines put in place by the Obama administration in 2011 as creating as a “failed system” that turned school disciplinary proceedings into “kangaroo courts.” In a speech at George Mason University, DeVos ticked off a litany of examples in which students accused of sexual assault had been expelled based on questionable evidence and a one-sided process. Although DeVos did not rescind the Obama guidelines outright, it is clear that she intends to replace them.
Cue the outrage. Advocates for survivors of sexual assault have decried DeVos’ actions as sending a clear message to victims that they are on their own. That’s too harsh—as someone who’s studied and reported in-depth on this complex, emotionally fraught issue, I’ve come to the conclusion that the Obama-era guidelines got the policy wrong. And before we condemn the education secretary, let’s give her a chance to get it right.
Let’s also be clear about where we are now: The Department of Education will continue to interpret Title IX—the federal statute outlawing sexual discrimination in “any education program or activity receiving federal financial assistance”—as protecting students against sexual violence. DeVos has promised that new rules will be issued after stakeholders from all sides on this issue have had the opportunity to provide their viewpoints.
The Obama administration did not follow that process. Known in legal parlance as “notice and comment,” it is required before most federal regulations become binding. The 2011 guidelines were enforced differently:
Hundreds of schools were placed under federal investigation for failing to be tougher in handling allegations of campus sexual assault. The result was classic government overreach: heavy-handed “guidance” to schools that was officious, burdensome and ripe for abuse at the hands of scared, ill-trained administrators.
And there were abuses—one of which I documented in a previous article for Politico Magazine, the complicated case of a University of California, San Diego student who was suspended for alleged sexual assault after being denied a chance to present his side of the story. Now there is an opportunity to give the fraught issues surrounding campus sexual assault a full airing and develop new rules that have the benefit of a robust debate.
Campus sexual assault is a very serious problem, and survivors suffer lifelong trauma. The Department of Education is right to insist that schools hold their attackers to account. But the Obama guidelines created a new class of victims: students expelled and branded sexual assailants based on a disciplinary process that deprived them of crucial rights. Without those basic rights—to some form of cross examination, to see the witness statements against them, to a standard of proof higher than a preponderance of the evidence (meaning a finding against them was required if there was a 50.01 percent chance that the charges were true, rather than by clear and convincing evidence or beyond a reasonable doubt) — these students lacked the tools to expose the substantial questions that exist in some of these cases, particularly he-said, she-said encounters where one or both parties was under the influence of alcohol or drugs.
Because DeVos is a member of the Trump administration—and therefore, a surrogate for the man who famously bragged about sexually assaulting women— it’s easy to focus on the messenger and dismiss the message. But calling out the lack of due process to the accused and insisting on reforms resonates with many people regardless of ideology or political affiliation. There is no contradiction in being a Democrat or a feminist and believing that every person accused of a serious charge deserves a fair process before judgment—particularly when that judgment can mean the end of an education. It doesn’t make you a rape apologist to demand a system that gives us more confidence that justice is being done.
So I say, let’s take DeVos at her word. People who care about this issue should participate in the notice and comment process by offering thoughtful suggestions for how to improve the current system.
Here are mine: The standard of proof should be raised from a preponderance of the evidence to clear and convincing evidence to protect against findings that often seem like a coin toss. The accused should be entitled to a hearing at which both sides can present evidence and before that hearing, to see the statements of everyone interviewed in connection with the complaint. At the hearing, the accused should be entitled to an advocate who can pose questions to the witnesses against the accused, subject to reasonable limitations. The school officials assigned to handle these complaints should be required to undergo training so that they treat survivors and accused offenders with sensitivity and fairness. There should be an appellate process that is independent and thorough, rather than the rubber stamp that exists at too many colleges and universities today.
And finally, expulsion is a sanction that should be reserved for only the most egregious cases—not for people like Matt Boermeester, a former University of Southern California football player who was expelled last year for allegedly assaulting his girlfriend, Zoe Katz, even though Katz adamantly insisted the assault never occurred. The school meted out this punishment after refusing to turn over any of the evidence to Boermeester, including security footage of that may have captured the incident. Katz says she is a victim of the school’s unfair process, writing in a sworn statement, “I was harassed, threatened, and discriminated against by USC’s Title IX personnel.” Results like this leach the meaning from the words “sexual assault” and destroy lives in the process. We can do better, and we should seize the opportunity to try.
And if DeVos doesn’t listen, and instead throws out the Obama system without replacing it with something better, I’ll be the first to condemn her.
Lara Bazelon is an associate professor at the University of San Francisco School of Law and a contributing writer for Politico Magazine.