Op-Ed: DeVos Keeps Her Promise on Campus Due Process
Betsy DeVos kept her promise. As the education secretary vowed in September 2017, the department’s Office for Civil Rights last week formally proposed new regulations designed to create a more just process when campus tribunals adjudicate sexual-misconduct allegations. The proposed rules closely track recent court rulings favoring accused students.
In 2017 interim guidance, Mrs. DeVos had invited schools to develop fairer procedures under the law known as Title IX. But nearly all retained the Obama administration’s approach, which was heavily tilted against accused students. (The University of Kentucky was the most prominent exception.)
The most significant proposed change involves cross-examination, a fundamental element of due process. The Obama administration had strongly discouraged schools from allowing cross-examination of an accuser. “If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” Anurima Bhargava, an Obama Justice Department official, told the Journal this August. That’s a presumption of guilt.
State and federal courts alike have held that the resulting processes are unconstitutional. In a case from the University of Michigan this September, the federal Sixth Circuit Court of Appeals ruled in favor of an accused student. “Not only does cross-examination allow the accused to identify inconsistencies in the other side’s story,” Judge Amul Thapar wrote, “but it also gives the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.” The Supreme Court, quoting legal scholar John Wigmore, has repeatedly described cross-examination as “greatest legal engine ever invented for the discovery of truth.”
The proposed regulations would apply that principle nationally. They would require live hearings in all Title IX cases, with lawyers or other advocates for the accused conducting cross-examinations of witnesses. Cross-examination can’t be effective unless accused students as well as accusers have access to all evidence—routinely denied to accused students under current practice.
The proposed regulations would require that accuser and accused alike have access to all evidence gathered in the investigation. If witnesses chose not to participate in the hearing, their statements would be discounted. The new rules would also dismantle the transparently unfair “single investigator” model, in which many colleges have allowed a single person, usually hired by the Title IX office, to be investigator, judge and jury.
One critical provision would mandate that schools turn over the materials they use to train adjudicators to either party on request. Washington’s Obama-era guidance required that Title IX adjudicators receive training in “the effects of trauma, including neurobiological change.” In practice, that is prejudicial: Many schools treat virtually any behavior by the accuser—including actions that real courts properly interpret as evidence of deception—as consistent with truthfulness. The University of Mississippi claims that “lies” by an accuser shouldn’t necessarily cast doubt on her credibility, arguing that lying simply is one of the “different responses” a victim can have to a sexual assault.
The proposed rules include provisions favorable to accusers as well. They stress that institutions must provide accommodations to students who allege sexual assault on campus or within school programs. The Obama administration notoriously mandated that schools apply the low “preponderance of evidence” standard in adjudicating claims. The new rules will permit them to continue doing so, and most almost certainly will. The regulations would impose limits on questioning about an accuser’s sexual history, in line with rape shield laws. They would retain an Obama-era requirement that schools allow accusers to appeal not-guilty findings.
In the past two years, groups representing sexual-assault accusers have insisted that they only want a fair process, not one that railroads accused students. Their response to the regulations proposed will provide a test of their sincerity.
The procedures that result from these new rules won’t be entirely fair to accused students. Unlike courtroom advocates, colleges lack subpoena power. And universities will still have strong incentives to favor accusers, if only to pre-empt media criticism or appease campus activist groups. But as the proposed regulations note, when a university “establishes an equitable process with due process protections and implements it consistently, its findings will be viewed with more confidence by the parties and the public.”
Messrs. Johnson and Taylor are co-authors of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”