A Better Way to Handle Sexual Assault on Campus
There's a way to punish the guilty without sacrificing the rights of the accused.
Since 2011, almost six hundred students have filed civil suits against their colleges, asserting they were punished unfairly for supposed sexual transgressions. A large number of resulting court decisions—including rulings from six federal Appeals Courts—have been favorable to the accused.
One of the earliest decisions involved a Brandeis University undergraduate who had been in a long-term, monogamous relationship with his boyfriend. The complaint against him came months after the two students had broken up, when both were seeking a new romantic relationship with the same man. The school failed to give notice to the accused student of what specifically he had done wrong. He found out when an investigator hired by Brandeis found him responsible for such violations as kissing his partner awake and watching the partner come out of the shower without asking advance permission.
U.S. District Court Judge F. Dennis Saylor identified the key problem in the approach that the Brandeis case typified: Universities appeared to
have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.
The whole affair, Judge Saylor concluded, was “closer to Salem, 1692 than Boston, 2015.”
Some of the country’s most senior judges—many of them appointed by liberal presidents like Bill Clinton or Barack Obama—have been warning that current rules are gutting due process. Even so, both the mainstream media and the Democratic Party have largely remained silent about these abuses. So we are now in a deeply paradoxical position: The administration of Donald Trump, a man hardly known for his concern for the well-being of the innocent, has proposed changes that would help the accused get fair treatment—while Democrats are vowing to reestablish rules that senior judges have decried as inimical to the rule of law.
Title IX is a 1972 federal law that prohibits discrimination in education on the basis of sex. For the first 25 years after its passage, the law was primarily used to ensure that colleges offered the same number of scholarships to female as to male athletes. After increased media attention to campus sexual assault and complaints from student victims, the Department of Education in 1997 expanded Title IX’s mandate to require colleges and universities to address campus sexual misconduct claims. The enforcement of Title IX was handled primarily by the Office for Civil Rights (OCR), an Education Department division that attracted little attention from top elected officials.
That all changed in 2011, when the Obama administration made the elimination of campus sexual assault one of its central domestic policy initiatives. Using Title IX, it began a comprehensive effort to prod schools into action.
Sexual assault on campus is a serious problem, and the initial effort to address it was undoubtedly well-intentioned. And yet, the new guidance, which created a bureaucracy on our nation’s campuses tasked with policing all sexual encounters between students, soon created big problems of its own: Fueled by unsupported assertions about the breadth of the problem and discredited science about how people respond during sexual encounters, new campus rules covered everything from jokes to demands that each touch during every sexual encounter require explicit, preferably verbal, and preferably “enthusiastic” consent.
Desperate to avoid bad publicity, many colleges developed blatantly one-sided procedures. Schools routinely denied accused students adequate or specific notice of the charges against them, refused them access to the findings by investigators, and ignored exculpatory evidence. Title IX proceedings had profound consequences for the lives of dubiously accused students, often ending their educations and denying them potential careers in the military, in medicine, and in professional sports.
Concerned about the gutting of civil rights, some liberal and civil libertarian groups spoke up against these changes. At Harvard, a coalition of feminist law professors wrote that the campus Title IX enforcement procedures “are frequently so unfair as to [be] truly shocking.” The American Bar Association, the Association of University Professors, and the Foundation for Individual Rights in Education all released reports urging an overhaul of Title IX policies. The pleas were almost entirely ignored.
In a perfect world, these pleas, as well as rulings such as Saylor’s, would have prompted the Obama administration to course-correct. Instead, these issues went unaddressed until 2017, when Education Secretary Betsy DeVos proposed a reform of existing regulations that started from two premises: “Every survivor of sexual misconduct must be taken seriously.” And, at the same time, “every student accused of sexual misconduct must know that guilt is not predetermined.”
Over the past years, Donald Trump has attacked the rule of law in extreme ways. He has granted clemency to U.S. military officers who committed war crimes and pardoned his political associates. He opened his administration with a travel ban that ignored core constitutional principles and has used the White House and other accouterments of the presidency to promote his commercial interests. There is very good reason to doubt the sincerity of any policy initiative by the current administration that supposedly aims to reestablish the rule of law.
But, anomalously, the administration’s proposed regulations under Title IX were carefully drafted to remedy the abuses that had become increasingly evident over the past years. DeVos closely tailored the rules to conform to existing judicial precedent, and significantly modified her draft proposal in response to informed criticism, adopting several changes suggested by sexual assault activist groups.
Perhaps the most significant change in DeVos’ regulations is about how those accused of misconduct can defend themselves. The Obama administration had discouraged the use of cross-examinations—or indeed any form of live hearing at all. Instead, it favored the appointment of a “single investigator” who would serve as both judge and jury: gathering the evidence, and then making a ruling.
The new regulations, by contrast, guarantee that students formally accused of violating Title IX rules receive a live hearing in which their representative can cross-examine the accuser. (The regulation forbids students from directly cross-examining each other and encourages the use of teleconferencing so that the accuser and accused are not in the same room.) From now on, schools must also presume the accused student innocent; provide both accuser and accused with evidence gathered in the school’s investigation; and use unbiased material to train adjudicators.
Even though these changes would serve to reestablish the long-held liberal priority of affording due process to those accused of serious offenses, Democratic officials immediately united in their opposition to everything DeVos proposed. Eighteen of the twenty-four Democratic state Attorneys General brought federal suits seeking to prevent these new regulations from going into effect.
But a remarkable unwillingness to engage with fair-minded critics helped to hamper this litigation. The Supreme Court has hailed cross-examination as the “greatest legal engine ever invented for the discovery of truth.” And yet, one of the suits brought by the Attorneys General asserted that cross-examination would “lead to less reliable outcomes.” Unsurprisingly, this implicit rejection of Supreme Court precedent did little to persuade federal judges to stop the regulations from taking effect. “Rather than harming students,” John Koeltl, a Clinton nominee, wrote in the first judgment on the issue, “the Rule has the potential to benefit both complainants and respondents by providing procedural guidance for grievance procedures.”
When Tara Reade, a former aide to Joe Biden, claimed that he had sexually assaulted her in 1993, fellow Democrats quickly came to his defense. “There’s also due process,” House Speaker Nancy Pelosi appropriately reminded the public. New York Senator Kirsten Gillibrand, a leading defender of Title IX, added that “Vice President Biden has vehemently denied these allegations and I support Vice President Biden."
Once reporters began to investigate Reade’s allegations, they discovered a long series of discrepancies. Biden has, for good reason, been exonerated of the serious accusation against him in the eyes of the public.
But even as Democrats have insisted on a fair consideration of the evidence in the case of Joe Biden—he himself asked that the accusations against him should “be diligently reviewed,” but not presumed to be true—they are trying to reimpose a regime of presumed guilt on the nation’s college students.
Even as she demanded due process for Biden, Speaker Pelosi denounced DeVos’ proposed regulations for illustrating the “staggering depths of this Administration’s contempt for survivor justice and campus safety.” In a public letter, over one hundred of her House colleagues asserted that allowing an accused student, who is facing the possible end of his education, to be represented by criminal defense attorneys “flies in the face of common decency.” As for Biden himself, he has promised to put the DeVos regulations to “a quick end in January 2021” by “restor[ing] Title IX guidance” from the Obama era.
Given the cruel nature of most regulatory initiatives taken by the Trump administration, it is understandable that Democrats have responded to DeVos’ reforms with reflexive condemnation. But it would be much better if party leaders instead led the effort to ensure that both accusers and accused receive fair treatment on campus.
It is not too late. I am a Democrat. If my party’s nominee takes office next January, he will need to repair the damage wrought by the Trump administration in policy areas from immigration to foreign affairs. Instead of focusing on undoing the newly adopted Title IX regulations before they have had a chance to prove themselves, I urge a prospective President Biden to focus on remedying those urgent injustices.
KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center.
Here is a wonderful, and horrifying, law review article that shows clearly what the "Dear Colleague" letter set in motion and why it had to be changed. DeVos' regulations are far better than what existed. I will vote for Biden, but he is completely wrong about this one - and should now have a clearer understanding of the issue. https://web.law.columbia.edu/sites/default/files/microsites/law-theory-workshop/files/the_sex_bureaucracy_21.pdf It clearly must not come back in the old form, if there is a change in regulation.
This is an important and provocative discussion, and one that is necessary. But it is disappointing to see the author ignore one of the key problems facing both Title IX and any correctives proposed for it: that, unlike other areas of sexual assault adjudication, Title IX issues are heard by the campus authorities themselves, who have biases and vested interests in the outcome of any investigative proceedings. By "balancing" out the rights of the accused, and here using the Supreme Court's comments on cross-examination as support, you ignore the challenges that are structurally in place in the nature of a self-governing campus community which by nature are preferential to the accused, rather than the accuser -- since the accused is in a sense the de facto representative of the institution and its practices, reputation, and public presence.
It would be nice to hear more about how a future Democratic administration might address those issues, and how the impetus to push back on many of the changes from DeVos and the current administration are driven by a larger goal, and perhaps suggest some rational approaches to correcting the underlying problems with a school trying to address what is inherently a criminal, not an educational, issue.