Commentary

Protecting Due Process in Sexual-Assault Cases on Campus

September 08, 2017

Gwenda Kaczor for The Chronicle

I used to wonder what was worse: Republican politicians ignoring women’s issues or Republican politicians talking about them. The recent speech by Secretary of Education Betsy DeVos is a welcome exception: Her address on the need to reform campus sexual-assault procedures was empathetic and judicious. She offered a way forward that should appeal to fair-minded people across political and cultural divides.

"One rape is one too many," she said. But, she added, "One person denied due process is one too many."

She acknowledged the suffering of both victims of sexual assault and those falsely accused of assault: "Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined." Those are non-negotiable principles, and she promised to revamp the current system for adjudicating cases of campus sexual assault, which she called "broken."

That broken system was created by a letter from a little-known public official. No one in the House or Senate voted for it, and no judge reviewed it. The public was not notified in advance and did not discuss it before it was issued. On April 4, 2011, Assistant Secretary of Education Russlyn Ali sent out her now-famous "Dear Colleague" letter to colleges across the country.

The letter advised them to determine guilt in sexual-assault cases by the lowest standard possible — a preponderance of evidence — and to "minimize the burden on the complainant." It said nothing about the rights of the accused. Informal measures for resolving "he said, she said" confrontations were ruled out of order. "In cases involving sexual assault," Ali instructed, "mediation is not appropriate even on a voluntary basis."

Ali thought college administrators were doing too little to protect students from the reported epidemic of sexual violence and harassment on campus. I have argued elsewhere that these reports were exaggerated, and that most college officials did take the problem seriously, but I don’t question her sincerity. I do question her judgment and her right to regulate by fiat. Secretary DeVos was right to say, "Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students."

Colleges were panicked by Assistant Secretary Ali’s "Dear Colleague" letter and rushed to meet the new requirements. They revamped their disciplinary committees and hired Title IX officers to run programs with titles like the Office for Sexual and Gender-Based Dispute Resolution. According to Emily Yoffe, Harvard has 55 full- and part-time Title IX coordinators. Princeton has 41.

Fearing Title IX investigations and loss of federal funding, many colleges set up extrajudicial sex courts, where defendants could be found guilty of a crime even if there was a 49.9 percent chance that they were innocent. At last count, more than 150 lawsuits have been filed since 2011 by students (mostly young men) alleging unfair treatment in a campus sexual-assault proceeding.

Consider the case of "John Doe," a 21-year-old Asian-American senior at Amherst College. In December 2013, he was expelled for sexual assault. The young woman, whose roommate was dating Doe at the time, brought charges nearly two years after the alleged event. He vehemently denied them, and her story kept changing. First she described the encounter as consensual, then said it began consensually and turned nonconsensual, then said it was assault. The college acknowledged that he was blackout drunk at the time, and that she wasn’t — which means, if anything, that she may have violated sexual-assault policy. In a Kafkaesque trial, without benefit of counsel, cross-examination, or appeal, he was found guilty and expelled.

But then, with the help of a lawyer, the accused student gained access to text messages that the young woman had sent during and immediately after the alleged assault. The texts make it clear that she initiated the encounter. She texted a friend afterward, worried about what would happen if her roommate found out: "She’ll never speak to me again." The friend had a suggestion: "Put all the blame on [Doe]." But she dismissed that, saying "[My roommate] knows me — pretty obvious I’m not an innocent bystander." And then she texted another male student and invited him over for sex, immediately after her alleged rape.

When John Doe presented Amherst with the exculpatory texts, it refused to reconsider. A spokesman explained that the college’s disciplinary process was consistent with federal requirements and fair to all parties. "That process was followed in this case," he said.

Current federal requirements threaten principles at the heart of the American legal tradition. Due process does not guarantee justice, but without it injustice is nearly certain.
The spokesman was right about following the federal requirements. And that’s the problem. Those requirements threaten principles at the heart of the American legal tradition. Due process is guaranteed by both the Fifth and the 14th Amendments to the Constitution. Those accused of a crime have the right to an unbiased and speedy trial, to be notified of the charges and evidence against them, to cross-examine adverse witnesses, and to be represented by a lawyer. Due process does not guarantee justice, but without it injustice is nearly certain.

DeVos does not plan to answer the "Dear Colleague" letter with a letter of her own. "The era of ‘rule by letter’ is over," she said in her speech Thursday. She promises to use a fair and transparent procedure — the "due process" that regulatory agencies are ordinarily required to follow, which Ali’s "Dear Colleague" letter ignored — involving experts and advocates from all sides. DeVos showed an openness to a range of proposals for reforming campus procedures from groups across the political spectrum, including the American Bar Association and Harvard law professors. Her revamping of Title IX could turn out to be a rare occasion for bipartisan cooperation.

Unfortunately, the initial signs are not good. #StopBetsy is trending on Twitter. Prominent Democrats are lining up to denounce the secretary. Andrew Cuomo, governor of New York, tweeted: "Betsy DeVos’ proposal is about to make campuses less safe. New York State stands with survivors." But shouldn’t New York State also stand with due process and the Constitution?

Given our poisonous political atmosphere, many will view even a sane and necessary reform as illegitimate. In their zeal to oppose all things Trump, liberal political leaders and college administrators may abandon a generation of students to what DeVos rightly called a "failed system."

Christina Hoff Sommers is a resident scholar at the American Enterprise Institute. She is the author of several books, including The War Against Boys (Simon & Schuster, 2000).