Education Secretary Betsy DeVos has taken an important step in standing for fairness on college campuses. The last six years, the federal government has forced university administrators to act as police, prosecutor and judge when accusations of sexual misconduct are raised by their students. The victim? Due process.
DeVos is already taking heat for her Thursday speech that laid out her plans for reworking the Obama-era rules related to campus assault investigations.
Much of it is overblown. For instance, the Women’s March tweeted: “@BetsyDeVosED just made campuses safer for rapists.” And the #StopBetsy frenzy is just starting.
But these critics should take a minute and really listen to what DeVos is proposing. She’s not an apologist for rapists — or anyone who does harm to students. And she made a strong commitment to stand for victims.
This summer DeVos has taken time to listen to concerns from both sides of the issue, including men’s and women’s groups. She also consulted legal experts and university administrators.
DeVos’ conclusion is that due process has been tossed aside in the current framework, which the Obama administration’s Office for Civil Rights laid out in its now-famous 2011 Dear Colleague letter.
“Here is what I’ve learned: the truth is that the system established by the prior administration has failed too many students,” DeVos said.
That letter changed the standard used to determine guilt to a weaker preponderance of evidence benchmark, and it also pressured universities to investigate allegations quickly (if they didn’t follow through, their funding was at risk). And since the feds were using the Title IX sex discrimination prevention law as its rationale, administrators have been under pressure to find in favor of the accusers, who are overwhelmingly young women.
That’s led to case after case of young men getting ousted from their colleges without a fair hearing that allows them to present a vigorous defense.
It’s also helped blur the line between actual assault (a crime) and a regretted but consensual sexual encounter often fueled by alcohol or other substances.
A story reported this week in the Atlantic is the perfect example. It details the unjust handling of a case at the University of Massachusetts, where a black male student had an encounter with a white female student — consensually, according to both students’ statements. It was only afterward that the female student decided she’d been assaulted, even though the testimony of both parties agree that there was consent every step of the way. Her accusation ended in the male student’s expulsion and put a halt to his college education, even though police and a university investigation determined no assault occurred.
DeVos related similar scenarios in her speech. They happen frequently. And this is why she’s pushing for a return to due process in these investigations. She says she wants to take public comment before settling on a new framework — a step the Obama administration never took.
Sticking to the Constitution’s due process clause is the best way to protect both the accuser and the accused. Efforts to bend that document to favor one or the other always cheat the cause of justice.
And justice should be the goal.
“Due process is the foundation of any system of justice that seeks a fair outcome,” DeVos said.