After hearing concerns about punishment without due process, U.S. Education Secretary Betsy DeVos believes that federal guidance on campus sexual assaults has created unfairness. That’s why she is mulling big changes in current rules.
DeVos is considering rolling back the Obama administration’s 2011 “Dear Colleague” letter, which urged colleges to treat sexual harassment and violence as sex discrimination under Title IX — the 1972 directive that prohibits discrimination based on gender at schools that receive federal funds.
Before the letter, studies showed that too many college administrations ignored or downplayed sex assault allegations — putting concerns about bad publicity ahead of supporting victims. The letter helped to push many colleges into taking assault allegations seriously. And it prompted many institutions to set policies and require all students to learn them.
That is not to say that the federal guidance has always been interpreted and applied well. There have indeed been cases in which students have been falsely accused and unfairly punished. But that doesn’t mean the entire effort to report assaults and hold perpetrators accountable should be tossed aside.
Surveys have shown that between 25 percent and 30 percent of all young women on college campuses have been sexually harassed or assaulted. And, historically, too many of them have not reported the incidents because they wouldn’t be believed and nothing would be done about it.
DeVos says she wants to make sure that the accusers and the accused are both treated fairly. That’s an admirable goal, especially in light of comments made recently by Candice Jackson, acting assistant secretary for civil rights, who told the New York Times that 90 percent of Title IX cases fall in the “we were both drunk’’ category. Those, Jackson said, are situations in which the accused say “we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.”
Following well-deserved criticism for those remarks, Jackson issued a statement apologizing for being “flippant” and said she is a rape survivor.
Some argue that the Obama administration pushed colleges and universities too far in favor of accusers — so far that they regularly violate the rights of the accused. Particularly controversial is the idea that campus investigations should use the “clear and convincing” standard of proof, not the “preponderance of evidence” suggested by the Obama administration. But colleges and universities have codes of conduct and standards that they have every right to set and enforce. College administrators can only suspend or expel students — not send them to jail.
Minnesota Attorney General Lori Swanson was one of 20 state attorneys general who this week cautioned DeVos against rolling back the tone and intent of the federal guidelines. In a letter to DeVos, the state officials acknowledged that more can be done to assure that investigations are done fairly. Yet they rightly warned that undoing the spirit of the federal guidance would send “exactly the wrong message to all students.”
DeVos should heed that wise advice.