The Biden administration wants to force universities to change how they handle sexual assault claims on campuses. Unfortunately, the changes would deny accused students their basic rights.
We’ve been here before, during the Obama era. It didn’t work then, and it won’t work now.
Title IX of the 1972 Education Amendments was enacted nearly 50 years ago. It makes it illegal for any educational institution receiving federal funds to discriminate on the basis of sex.
In 2011, the Department of Education came up with a new interpretation of Title IX and published a “Dear Colleague” letter which provided “guidance” as to how universities should adjudicate sex assault accusations.
The guidance pressured schools to use the “preponderance of evidence” standard of proof rather than the much stronger “beyond a reasonable doubt” standard applied to sexual assault cases in our criminal justice system.
It told universities that, in these cases, only a single administrator should handle the cases, acting as investigator, prosecutor, judge and jury all at once.
The letter further advised schools that, since they were conducting an administrative rather than a criminal hearing, those accused of assault should not be able to cross-examine their accusers or allowed legal representation. At many universities, the accused were not even allowed to see the evidence against them.
Unsurprisingly, once tribunal procedures were stripped of fairness and impartiality, the number of students wrongfully accused and punished spiked. So, too, did the number of lawsuits filed against universities who followed this guidance.
A 2019 study found that, in 2018, 78 such lawsuits were filed, compared to only seven during the 21 months immediately following the “Dear Colleague” letter. Most of the lawsuits filed from 2011 to 2019 were decided in favor of the accused students.
In 2017, then-Secretary of Education Betsy DeVos rescinded the 2011 guidance and spent the following three years rewriting the Title IX rules to implement fairer, more effective procedures, with better options for accusers and stronger due process rights for the accused.
Now, however, the current administration seems poised to return the Obama-era kangaroo courts to campuses.
Last month, Catherine Lhamon was confirmed as assistant secretary of education for civil rights — the same position she held in the Obama administration. She aggressively enforced the 2011 guidance then, and seems ready to do so again. During her confirmation hearing, she testified that she does not believe Title IX regulations include a presumption of innocence for the accused, a fundamental tenet of our justice system.
The president is just fine with that.
On the campaign trail, he vowed to bring a “quick end” to the DeVos rules. And in March 2021 he issued an executive order directing the Education Department “consider suspending, revising, or rescinding” the DeVos rewrite.
Such a reversion would not only erode due-process rights on campuses, it would endanger victims of sexual assault as well. Without mandatory referral of sex crimes to law enforcement, predators who receive only administrative punishment from a university would walk free.
Sexual assault is a criminal act. Accusations of criminal acts should be investigated by law enforcement, not university administrators with no legal or criminal justice training.
Those opposing a return to the 2011 guidance have been accused of insensitivity to the victims of sexual abuse and are said to “want no process or consequence for abusers.” These are straw-man arguments. What we want is a fair, effective process that respects the rights of both the accuser and the accused.
Just as free speech must be protected no matter how hateful that speech is, so must everyone receive the full protection of due process under the law, no matter how heinous the alleged offense. Without these protections, many more innocent students will be wrongfully accused and punished.
• John Schoof is a research associate and project coordinator in the Heritage Foundation’s Center for Education Policy.
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