The Department of Education’s proposed Title IX regulations on campus sexual assault and harassment are a great improvement on Obama-era guidelines. Most importantly, the proposed new rules bolster due process protections in campus proceedings.
But the main lesson of recent years’ stories on campus sexual assault cases isn’t simply that the current rules are at fault. It’s that universities simply cannot adequately adjudicate these cases.
The new rules are an improvement. Specifically, the proposed changes include narrowing the definition of sexual misconduct that universities are obligated to investigate. If the alleged incident doesn’t potentially violate any law on sexual harassment or assault, the college isn’t obligated to investigate it. This means politically incorrect comments about gender or sex are less likely to land a student in a proceeding for “unwanted conduct of a sexual nature.”
Additionally, the new rule does away with the single-investigator model, where one administrator could serve as the proverbial judge, jury, and executioner. Instead, DeVos has proposed that universities would be required to have a separate decisionmaker to determine responsibility.
In terms of the actual format of proceedings, cross-examination would now be mandatory, evidentiary standards used for sexual miscount would have to reflect those used in other campus adjudications, a presumption of innocence placing the burden of proof on the school would be enforced, and written notice of allegations would be provided.
That such changes were even necessary highlights just how much of an improvement in the campus adjudication process DeVos’ proposal would be.
And students, both accusers and accused, greatly benefit. Without a clear and fair process in place, students would be both less likely to seek help on campus to file a complaint and less likely to challenge rulings or actions put in place for the benefit of a victim.
The new rules also highlight the importance of greater support for victims, including giving complainants more control over how their allegations are handled by the school. The rule would also mandate that schools take all formal complaints and reports seriously and respond meaningfully.
It’s also worth pointing out that unlike the Obama-era guidelines issued through the infamous “Dear Colleague” letter, DeVos’ changes would be formal regulations that will only become law after the notice-and-comment process. That allows the Education Department to incorporate stakeholder feedback before issuing the final rule. That’s the right way to enact consequential changes.
The process and the changes themselves to the Title IX rule should be commended, with no small credit going to DeVos. But this whole system is fundamentally flawed because it turns university administrations into a judicial system.
As universities have a stake in the outcome of the proceedings, those running the entire process and ultimately meting out consequences have a true conflict of interest.
In addition, administrators lacking legal training and experience in complex sexual misconduct hearings are unable to adequately meet the needs of accusers or accused, leaving everyone with little realistic prospects of justice and, at best, a poor imitation of legal fact-finding.
Finally, without a judge, a right to counsel, a jury, and public reporting, students will never receive the full benefits and protections of the law. For victims, that means that perpetrators face only the expulsion, not prison, and are free to enroll elsewhere. For those accused, that the means that the full protections of the criminal justice system and its provisions of equal and impartial justice are not bypassed.
Schools, of course, must have procedures in place to remove students or determine consequences for violations of school policies that are not criminal matters. In these instances, DeVos’ rules are clearly important. Matters involving gross sexual misconduct, however, have no place in a campus hearing and should be before a court of law.
College students, like all Americans, have a right to true due process. DeVos’ rules are certainly a step in the right direction, but stop short of ensuring that equal and impartial justice extends to campuses.
