Secretary of Education Betsy DeVos has a plan to overhaul Title IX policy on campus sexual assault and harassment. It’s a clear improvement over Obama-era policies that traduced due process. Reports say the new rules would oblige campus authorities to respect due process rights, including cross-examination of witnesses, and mandates both that accusers be treated as innocent until proven guilty and that clear legal standards be adopted.
Sexual assault is a serious crime, a felony in every state, and it should be treated as such with accuser and accused receiving the full benefit of all protections offered under law.
Unfortunately, in part because of the Obama-era guidelines, in part because of public demands, and perhaps mostly because university administrators have increasingly involved themselves in the nonacademic side of higher education, sexual assault adjudication often occurs in campus administrative offices rather than in court.
DeVos’ proposal may just be a first step, but the problem is that it continues to allow colleges and universities to conduct quasi-judicial proceedings. DeVos wants the overhaul to be more than just threatening guidelines, but to carry the full force of law. This could allow an unfair, unequally enforced, and unprepared parallel judicial system for college students to be codified by law.
In most campus sexual assault cases, where the lines between conviction and consent are often blurred by alcohol, drugs, and newfound freedom, campus bureaucrats cannot be the beginning and the end of the pursuit of justice. Such a system would still deny rights to the accused, who deserve protections denied under the Obama guidelines, but also to the accuser, who should be able to see their attacker, if proven guilty, prosecuted to the fullest extent of the criminal law.
No amount of reform by the Education Department will make a campus proceeding the equivalent of a court of law. Some campus proceedings are necessary to determine whether a student should be suspended or expelled. Campuses also have to adjudicate offenses that violate campus rules but are not illegal, such as sexual harassment or student-professor relationships. But when formal legal action can be taken, administrators and counselors should encourage victims to file police reports, and campus proceedings should not be the beginning, middle, and end of the judicial process.
Having a separate system for college students and the world beyond campus is inherently unfair.
A legal case means legal consequences for violent crime. But colleges and universities have no authority to convict anyone. Administrators may find someone guilty, but they cannot send that person to prison. Even if he or she is expelled, enrollment elsewhere is an option, and further crimes an obvious possibility.
A legal proceeding also offers the accused full, transparent, and appealable justice. Investigation of an alleged crime, and its prosecution, defense, and judgment would be undertaken by professionals, not by campus administrators who often have little training and no legal background.
Accusers can opt to move a case to a real courtroom by filing a police report, but they rarely do so. If the accuser wants to proceed with a campus trial, the accused will be subjected to that process, however flawed it is. Universities also have an interest in keeping proceedings on campus because they can limit bad publicity. Universities have used this authority to protect those accused of sexual assault and to deny students due process to claim support for victims. In one case, highlighting the inability of campuses to arrive at impartial findings, administrators collaborated inappropriately with campus police and failed to reveal this when the case went to trial.
Universities should not be serving as judge, jury, and executioner. DeVos’ proposal shows that she has identified a grave wrong that was encouraged by the Obama administration. For this, she deserves credit. But university administrators have a conflict of interest, and should not be allowed to compromise justice. Students would be better served with sexual assault cases adjudicated in a proper, impartial courtroom.
