On Thursday, Education Secretary Betsy DeVos announced in a speech at George Mason University that her department is on a mission to improve upon the counter-productive Obama-era approach to sexual assault investigations on college campuses. The department's efforts to craft better guidelines, DeVos said, will rely in part on a "notice-and-comment" process seeking feedback from the public. (I've taken the opportunity to pass along my own brief suggestions.)
In her remarks, DeVos shared stories both from survivors and falsely-accused students who were not well-served by the department's previous approach, one that encouraged schools to adopt a "preponderance of evidence" standard for determining guilt but without any due process protections for the accused. The secretary, who has met with victims of sexual assault and victims of false accusations in recent months, spoke with clear compassion for both groups throughout her prepared remarks, likely aware that progressive feminists would accuse her of exhibiting insufficient empathy for survivors.
But in the years since Obama's Education Department issued its contentious "Dear Colleague" letter in 2011 pushing schools to adopt new guidelines, problems with those guidelines were raised by people outside traditional conservative circles. In a thorough exploration of the matter published Wednesday in The Atlantic, Emily Yoffe wrote:
The preponderance-of-evidence standard demanded by [the Education Department's Office of Civil Rights] requires schools to make life-altering decisions even when there is great doubt. Penn State, for instance, instructs its adjudicators to find the accused guilty if they deem there is a 50.01 percent likelihood that a violation occurred, adding that this means they "may have considerable reservation" about their decision. Last year, the American Association of University Professors called for universities to be able to return to using the "clear and convincing" standard that many had used previously in Title IX cases. This year, the American College of Trial Lawyers similarly called for the standard of proof in Title IX proceedings to be clear and convincing evidence. Groups of professors at Harvard Law School and the University of Pennsylvania Law School have each released open letters expressing their concern that OCR has undermined due process and justice.
Yoffe's entire take is well-worth a read. The directives issued under President Obama's administration created chaos for administrators and students, the breadth of which spans from lawsuits to the "establishment of gigantic and costly campus bureaucracies," as Yoffe put it.
In her speech at George Mason, DeVos emphasized that "the rights of one person can never be paramount to the rights of another," and pledged to develop an approach that involves "being more precise in the definition of sexual misconduct." As of now, it appears the department's new approach involves rolling back select Obama-era guidelines, though the scope of those rollbacks is yet unclear.
Those guidelines, which constituted major policy changes, were passed down to universities around the country by unelected federal officials in letters, as DeVos correctly noted. The department's new approach must find a way to lessen government and university overreach, ensure schools adequately protect the many victims of campus sexual assault, but also ensure they respect the due process rights of the accused.
Clearly, that is no easy task. Which is why DeVos' decision to solicit public feedback over time is the smarter approach to a difficult and painful problem.
Emily Jashinsky is a commentary writer for the Washington Examiner.