Op-Ed: DeVos is a defender of due process
On April 4, 2011, the Office of Civil Rights, under the Obama administration, released a letter called the “Dear Colleague” letter. It was sent to over 7,000 universities receiving federal funding (including NC State) and stated, in short, that universities needed to address the concern of on-campus sexual assault by adhering to a list of guidelines in order to keep receiving federal grants.
On Friday, Betsy DeVos, secretary of education for the Trump administration, announced the rollback of these guidelines. The decision, while being highly criticized as hurting sexual assault survivors, was right.
This is because the “Dear Colleague” letter, while having the best intentions, unfortunately only made the situation worse for both the accused and the accusing. To understand why, it's important to look at what the letter said and the effects it had on universities and students, including our own.
Essentially, the letter encouraged universities to independently handle sexual assault cases in a more timely and more active manner.
When a student accuses another of sexual assault on campus, according to the Washington Post the accuser can push for the accused to be punished by the school somehow (such as expulsion) rather than, or in addition to, going through the process of a criminal case. The idea behind this is that it decreases the number of unreported cases. For example, on NC State’s campus it is possible to contact the Office of Institutional Equity and Diversity to report concerns regarding sexual assault.
When this happens on our campus, because of the “Dear Colleague” guidelines, NC State usually sets up a hearings committee similar to a court hearing. They must then follow the UNC System Policy Manual to conduct the hearing.
According to the UNC System Policy Manual 700.4.1 “Minimum Substantive and Procedural Standards for Student Disciplinary Proceedings” Section VII: “Special Cases,” if a violation is also the subject of a pending criminal case (such as rape or sexual assault) “the institution must, at a minimum, allow an attorney advisor to accompany the student to the hearing.”
However, according to a RAINN study, 80 percent of college-age females don't report sexual assault cases to the police, and so no criminal investigation begins. In this case, Section VII only states that “both parties are entitled to the same opportunities to have others present during a disciplinary proceeding.”
Further, if the case is from that point on being treated as a “Serious Violation” under Section VI instead of a special case, then “Representation or assistance by attorneys or non-attorney advocates at the hearing is neither required nor encouraged” by the manual.
To simplify, this means that unless the accusing pursues a criminal case (which is statistically unlikely) NC State would not be encouraged to allow attorneys for either student, leaving both students to independently make their case.
In addition, Scott Schneider, a lawyer who specializes in higher education, pointed out to the Washington Post that many schools only use one investigator who determines what questions to ask, who to ask, and often what the appropriate punishment should be; any ideological bias in this investigator can play a large role in outcome of the hearing.
In NC State’s case this seems to be accurate according to Section VI: “Serious Violations” of the UNC Systems Policy Manual 700.4.1: “A student may be accused of a violation of the code of student conduct only by a designated university official.” This means that in accordance to North Carolina law, NC State would only be allowed to designate a single official to act as an investigator for the hearing (the UNC Policy Manual uses the term “official” not “investigator”).
Lastly, one of the guidelines in the letter was to use “preponderance of evidence” as a standard of proof in cases. Preponderance of evidence is commonly referred to as “more likely than not” accurate based on evidence, but DeVos uses the term “a minimal standard of proof.” Contrary to a criminal case in which the jury is required to have no doubt of guilt, this means that only more than 50 percent certainty is required to punish a student.
Based on all of these factors, a FIRE analysis found that three-fourths of universities lacked due process in 2017. It has become such a common occurrence that often these hearings are referred to as “kangaroo courts” seeing as the verdict is predetermined and the judge jumps from one to the next.
In short, the hearings encouraged by the letter can infringe on the due process rights of both the accused and accusing by denying both the right to defend themselves or present evidence via an attorney, can be heavily impacted by only a single investigator/official, and use a standard of proof that has much lower confidence in evidence, making it much more difficult for the defendant.
The “Dear Colleague” letter didn't just hurt defendants though; it hurt survivors too. The same way that a hearing run by administration can unjustly punish a student, oftentimes it will unjustly not punish them. Those accused with ties to the administration can be let off easy, leaving their victims feeling completely helpless.
Secretary DeVos is right to roll back the guidelines that turned on-campus sexual assault cases into a dangerous scenario for everyone involved. Now that the “Dear Colleague” letter is gone, states and individual universities have much more freedom in how they handle sexual assault cases. As college students directly affected by the rollback we should push with this freedom to make sure that NC State ensures due process for any and all students accusing or accused of sexual assault, rape or any other crime.