On Friday, Secretary of Education Betsy DeVos unveiled her much anticipated proposed Title IX Rule. The regulations go a long way towards correcting Obama-era guidelines that nearly did away with due process in cases of alleged sexual misconduct on campus.
The new rule abolishes the single investigator model, mandates a right to cross-examine accusers and witnesses, limits the jurisdiction of campus investigations, and defines sexual misconduct in accordance with law.
Although advocates of due process are right to commend DeVos’ work, even those improved rules retain a fundamental flaw: creating a separate legal universe that only applies to college students.
Campus proceedings, even under the new rules, are not held before a real judge. The accused does not have the right to legal counsel. There is no jury trial, the proceedings are not public, and there are no public records available. That leaves a process based on neither transparency nor accountability.
In short, campus proceedings are effectively sham trials without the legal force or protections of a court of law.
And even within these fundamentally flawed proceedings, students are still denied due process protections. If an accuser appeals, as is permitted under the new rules, the accused can be tried twice for the same alleged incident. In a court of law, that would be impermissible under the doctrine of double jeopardy, but on campus, that protection does not apply.
Likewise, even with the changes, colleges can still use the evidentiary standard of preponderance-of-the-evidence — as long as they use a similar standard for non-Title IX cases. Under that standard, the threshold for being considered guilty is 51-percent certainty. A court of law requires the higher bar of the beyond a reasonable doubt standard, as well it should given the serious nature of the accusations.
But there are more problems with leaving determinations of justice up to campus officials lacking legal expertise or authority.
The most important of these is that even if someone is found guilty in a campus proceeding, the most administrators can do is expel that student, allowing them to likely re-enroll elsewhere. Without the authority of a criminal court to put those found guilty of crimes like sexual assault, a felony in most states, perpetrators are left to continue their crimes — just as long as they find somewhere else to do it.
Moreover, the impartiality of justice, as clearly outlined in the 14th Amendment is a key tenet of the American justice system. It is unacceptable to allow universities, which have clear conflicts of interest based on their reputation, donations and pressure from activists, to decide the outcomes of such cases. There are numerous examples of universities prejudicing such cases based on which outcome would be best for the school — especially since the Obama administration began threatening to investigate schools that failed to find accused students liable.
At their best, campus proceedings are a poor imitation of American justice, rendering college students as a separate class of citizens, subject to different rules, different protections and different outcomes for the same crime. DeVos has clearly made an effort to rectify some of the most egregious manipulations of the proceedings, but as long as campus administrators retain their power to try what should be criminal cases, reforms will always be progress and not a solution.
This is not to say that colleges should do nothing about allegations of sexual assault. Clearly, they should take appropriate steps to support a victim’s access to education, as the proposed rules highlight by emphasizing the importance supportive measures.
Those steps, however, are wholly separate from actually making a finding of responsibility through a quasi-legal hearing and then enforcing the consequences. That should be left to the nation’s legal system.
