There’s a lot riding on a Title IX summit that’s happening at the Department of Education today. Education Secretary Betsy DeVos will meet privately with sexual assault victims and advocates who want her to maintain the campus sexual assault provisions decreed by the Obama administration (and plan to protest if she doesn’t). Then, DeVos will hear from young men falsely blamed for these crimes but found guilty, thanks to the flawed federally imposed process. And from advocates for this second, less conventionally sympathetic breed of victim, she’ll hear a plea to institute the sort of due process protections—standard in actual legal proceedings—that would have helped exculpate the innocent accused.
The Obama administration’s “Dear Colleague Letter,” announced just as reelection fever was ratcheting up in the spring of 2011, reinterpreted Title IX of the Higher Education Act—a gender parity rule passed by Congress in 1972. The letter from the Education Department’s Office for Civil Rights claimed the Nixon-era statute for a new mandate. Colleges would now have to adjudicate campus sexual assault allegations in their own home-brewed tribunals, according to a slanted and sub-legal standard of evidence. The former president sold the guidance as proof of his progressive credentials. But its irreversible damage to the rule of law stands testament to a legacy of well-intentioned overreach doing more harm than good.
Colleges that run afoul of the guidance-as-law land on OCR’s “list of shame”—and risk losing federal funds. Frequently, college students accused of misconduct under Title IX won’t learn of the allegations against them until their punishment has been meted out by an single investigator who also serves as prosecutor, judge, and jury. If offered a disciplinary hearing, they may not be allowed to review the evidence gathered against them or to cross-examine witnesses. And as a matter of course, the required “preponderance of evidence” standard favors the student who is more likely guilty than innocent—and the all too human moral imperative to believe a victim’s claim overpowers an often insufficiently informed defense.
One student Secretary DeVos will meet Thursday afternoon is Joseph Roberts. He was 28 when he started his freshman year at Savannah State University—after serving in Navy, on the USS Kearsarge based out of the Norfolk, Roberts was first in his family to go to college. Three weeks before graduation, in April 2013, a campus-wide email to all students, faculty, and staff at 10:30 pm declared him a “threat to the community,” and a few minutes later, he received a personal email from the administration citing an “incident report” that accused him of sexual harassment: “You are hereby summarily suspended,” it read, “pending the outcome of the investigation and hearing.”
But there was no hearing. Roberts missed graduation, never knowing what exactly he’d been accused of doing or by whom. He didn’t learn the identity of his accuser until he managed to hire an attorney months later: She was not a hookup or even a friend of his, but a candidate for student government whose opponent he’d supported. He felt “dehumanized” by the process, he told me in a phone interview Wednesday, and attempted suicide before seeking therapy and “bottoming out.” His life has never really returned to normal; that April night five years ago still haunts him “like a poltergeist,” but helping others gave him a sense of mission. “It was like a light switch. Once I found out there were more like us, I didn’t want anybody to hurt the way that I did once I found out there was more like us.”
This April, DeVos chose Candice Jackson to lead OCR into a new era. Before joining the Education Department, Jackson served as a private lawyer for sexual assault victims. Her presence in the post gives those concerned about fairness good reason to hope for reform, if not rescission, of the mandate as it stands. She recently issued a paper on changing enforcement policy in the systemic realm, and publicly advocates for on-campus adjudication that better reflects standard American judicial procedures.
Thursday’s summit, which Jackson arranged, is pegged as a “listening session.” There will be no policy announcements, but she is already taking steps to institute a more balanced approach: Whereas the Obama administration campaigned against sexual violence as activists with an ideology to enforce, the new OCR intends to take every case on its individual merits.
Jackson’s hope to restore balance has already made her a target for criticism from activists and advocates across a deeply polarized landscape. She issued an apology Wednesday night for a “flippant” description she gave the New York Times of the typical he-said-she-said Title IX cases.
Supporters of due process meanwhile, those who speak out about unfairness in campus sexual assault adjudication, are far from uniformly partisan. What they have in common—Cynthia Garrett, an attorney on the board of Families Advocating for Campus Equality who will meet with DeVos Thursday, told me—runs deeper than that: It’s a matter of witness and worldview. Garrett has two daughter, one in college and one in graduate school, and says they’re a big part of why she supports the intent of Title IX. Working with falsely accused students and hearing their stories has made her a staunch defender of fair process: “Before getting into this work, I would assume when someone was accused, something happened,” she told me. “It wasn’t until I got to know these students and their stories that my eyes were opened to an entirely different perspective.” Multiple Title IX administrators have told her that finding an accused student innocent was tantamount to calling his accuser a liar. A counselor or therapist should believe a victim. “But ‘believe the victim’ should not be part of adjudication, because that’s not what adjudication is,” Garrett said. “That’s not how justice works.”
On this point, lawyers on both sides tend to agree. The American Bar Association published a list of recommended procedures, a compromise between due process and victims’ rights advocates that Garrett, who’s among those taking their case to DeVos Thursday, believes will influence Jackson’s approach to reform.
She and her colleagues on the American Bar Association’s Criminal Justice Section Task Force on College Due Process Rights and Victim Protections—victims’ advocates, defense attorneys, campus administrators—agreed more than they differed. A better balanced process, they decided, would require reviewing evidence for merit, hearing in-person witness testimonies, and either a unanimous ruling from a three-person panel or a higher standard of evidence for a single-investigator ruling.
Founder and executive of victims’ advocacy group SurvJustice, Laura L. Dunn—a rape survivor and victims’ rights attorney—ostensibly works on the opposite end of the spectrum from folks at FACE. But Dunn, also a member of the ABA task force, hopes to see OCR’s reform efforts lead to a more balanced process just as much the next legal mind. “I think a lot of people are surprised sometimes to hear a group like SurvJustice, who are victims’ rights attorneys helping in campus hearings, is so supportive of due process rights,” she said. But when a respondent’s due process rights are violated, a civil court is likely to remand the case—requiring the the survivor to repeat the process and delaying the finality complainants seek, Dunn explained. She described a case dragging on for three years because of these complex components and thanks the denial of due process. “We had this campus process in the first place under Title IX with the goal of ensuring equal access to education and to prevent harassment and discrimination,” she said, “And due process protections have to go hand in hand with that so it can be an effective an succinct process—and ideally bring finality so that whatever the outcome is.” Dunn met with Jackson last week, and agrees with Garrett that the consensus the ABA accord represents appeals to OCR.
So does Chris Perry, with the advocacy group SAVE (Stop Abusive and Violent Environments), who brought accused students to tell their stories to lawmakers on Capitol Hill Wednesday—in the hope that, as Cynthia Garrett also said, their experiences and perspectives might influence policymakers. Of the ABA recommendation, which he called a “hybrid approach,” Perry said, “They’ve done the best job at getting to fair result.” Perry and Garrett are taking their case to DeVos Thursday, but in their outreach at the Education Department and on Capitol Hill, stories from falsely accused students like Joseph Roberts get top billing, Perry tells me. “What we’re hoping to do is share some of the personal stories of some of the accused students to really give some perspective to the dysfunction of the system,” he said.
Lobbying Washington with SAVE, “Every day is like throwing a granule of sand into a river trying to dam it up,” Roberts said. It’s hard to see a measurable impact. Sharing his story with the parents of accused students, on the other hand, he knows makes a meaningful difference. They feel as helpless as he did: “There’s nothing that a parent can do to protect your falsely accused student. You can’t give your kid due process rights,” so he looks them in the eye and tells them they’re not alone.
“Up here on Capitol Hill, it’s a different story,” he told me Wednesday—but, he keeps working with SAVE because he hasn’t lost faith that the consequences of the policy can be corrected. “I’m highly optimistic about the meeting with the Secretary tomorrow,” Roberts said.
