US Education Secretary Betsy DeVos announced today at George Mason University that the education department might rewrite the 2011 Obama administration guidance on how alleged sexual assaults should be investigated on college campuses. Although she largely ignored how the current rules have played a crucial role in cracking down on sexual violence on college campuses, where it’s prevalent, Ms DeVos correctly addressed the biggest problem with the current guidance: that it nullifies the rights of people accused of sexual violence, even before they’re found guilty by a court of competent jurisdiction.
The Obama administration guidance, which came in the form of a Dear Colleague letter, spelled out rules schools and universities that receive federal funds had to follow to enforce Title IX. Enacted in 1972, Title IX is a federal law that forbids discrimination based on sex in education. Most often, the law applies to sports, saying that girls have to be given equal opportunities as boys to participate in extracurricular activities, including athletics. But in recent years, especially since the Dear Colleague letter, the law has become associated with efforts to address sexual assault and harassment at college campuses across the country.
“We know we have to get this right,” the Philadelphia Tribune quoted Ms DeVos as saying, referring to Title IX enforcement at the federal level. “We have to get this right on behalf of all students.”
Specifically, the Dear Colleague letter changed the standard of proof required for colleges to punish students, usually by expelling them, based on an accusation of sexual violence. Whereas a court of law would have to show the accused is guilty “beyond a reasonable doubt,” colleges would only have to show that it’s “more likely than not” the person committed the offense.
So, of course there’s something flawed about that, but the accused isn’t being sent to prison, so people in one camp don’t have a huge problem with that standard of proof. On the other hand, the Constitution makes it clear that a person can’t be deprived of life, liberty, or property without due process. People in the other camp consider education to be at least one of those.
The question is this: Is this sufficient due process for the punishments universities have the teeth to enforce? Or, should any crime, sexual assault being one specific crime, be held to the same standards? And if so, are university personnel, most of whom haven’t been trained in law enforcement or legal proceedings, smart enough to serve as judges?
US Sen Patty Murray, the ranking member of the Senate education committee, said she wants Ms DeVos to commit to maintaining the guidance and continue to publish a list of colleges and universities under investigation by the Office for Civil Rights for allegedly mishandling sexual violence claims.
The acting head of the OCR has suggested she may stop publishing that list, which as of yesterday included 360 investigations at 257 institutions.
“Our schools and universities should be doing everything they can to support survivors and help them seek justice, so I hope Secretary DeVos does the right thing and starts standing up for students and survivors on college campuses across the country,” Ms Murray said in a statement.
Even if the eventual final rule released by the education department scraps the 2011 Dear Colleague letter, some good has already come from that guidance.
“One outcome of the 2011 guidance is that every institution in the country examined their policies and procedures in detail and revised them,” the Chronicle of Higher Education quoted Terry Hartle, a senior vice president at the American Council on Education, as saying. “No school is going to go back to doing what they were doing before the 2011 guidance. … Regardless of what the Department of Education does in this area, colleges and universities are not going to devote less energy and attention to the problem of sexual assault.”