Editorial: Due process returns to campus
Education Secretary Betsy DeVos is following through on her commitment to stand up for the due process rights of all students on U.S. college campuses. From what we’ve seen of a new framework, it would go a long way to restoring constitutional protection in campus sexual assault investigations.
That’s a long-overdue change. Last September, DeVos began this work, rescinding overzealous Obama-era guidelines that pushed university administrators to investigate and adjudicate serious accusations and even crimes.
Using the threat of withheld funding if schools didn’t comply, the former administration instructed universities to lower the burden of proof and create a framework to give alleged victims the upper hand. Title IX, the law preventing sex discrimination in schools that take federal funds, has been expanded greatly in recent years to apply to cases of sexual misconduct.
All this led to accused students with little recourse to defend themselves, with serious repercussions as a result, including expulsion.
It amounted to a lack of due process — a right guaranteed in the Constitution.
The proposed changes were leaked to The New York Times this week, and the final blueprint isn’t expected to be released for several more weeks. The White House must first review the guidelines and then they will be put up for a period of public comment.
The Education Department told The Detroit News editorial board that what has been reported so far is on the mark.
As reported by the Times, the new rules would allow both the accused and the complainant to request evidence and to cross-examine each other — something that was discouraged previously. Also, universities could apply other avenues for solving complaints such as mediation and restorative justice, as long as the individuals involved mutually agreed.
The Education Department also seeks to define sexual harassment in a much more specific way: "Unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school's education program or activity."
Previously, universities were told to handle any unwelcome sexual conduct.
Victim and women’s groups are unsurprisingly outraged by the proposed changes, which they feel would foster an environment hostile to victims and make them less likely to come forward.
“Betsy DeVos and the Trump administration care more about protecting perpetrators and sexual abusers over sexual assault survivors,” stated Karin Roland, chief campaigns officer for UltraViolet, a national women’s organization. “This policy is extremely dangerous and beyond shameful.”
What’s more dangerous is the erosion of due process. And these groups will have the opportunity to voice their concerns to the Education Department.
The Obama administration never put its guidelines through the rigorous rule-making process.
Once the new rules go through the full vetting, they will hold the force of law, so universities will need to pay attention. Many will undoubtedly resist doing so, but if they doubt what’s coming from the Trump administration, they should also look to the courts.
A decision last fall, out of the 6th U.S. Circuit Court of Appeals, found that the University of Cincinnati had erred in expelling a student for alleged assault and had denied the student his due process rights.
In that case, the court concluded: “While the public has a competing interest in the enforcement of Title IX, that interest can never override individual constitutional rights.”
This is at the heart of what DeVos and her team are trying to achieve.