PostEverything | Perspective
July 13, 2017 at 5:58 PM
We were more than halfway through the semester when a law student stopped by my office. I invited her in. I don't know how to say this, she hesitated. This class has brought up so much for me — stuff I never dealt with when it happened, and don't want to think about now. Tears fell down her cheeks. She said she had been raped, and then described her inability to sleep or concentrate on her schoolwork now that she was reminded of the experience.
In those days, I kept a box of tissues on my desk. It wasn't the first time a student disclosed having been sexually assaulted after we covered the subject of rape in my criminal law class, and it wouldn't be the last. Then, as a professor, my job was to be supportive and get my students the help they needed. Now, as a college president, it's my job to ensure that sexual assault on campus is dealt with fairly, directly and expeditiously. Secretary of Education Betsy DeVos now can help — or hurt — that effort.
According to a 2016 Justice Department study, one in five women is sexually assaulted in college. It is one thing to hear or read the statistics about campus sexual assault; it is another to hear about, and see the painful impact of, some of these terrible experiences firsthand. In addition to emotional and physical trauma, sexual assault can have serious academic consequences at the time it occurs, and well afterward.
For decades, the federal civil rights law Title IX, which prohibits sex discrimination in education, has required schools to respond promptly and equitably to campus sexual assault. During President Barack Obama's administration, the Department of Education lit a fire under university leadership to take its responsibilities under Title IX seriously. In a 2011 letter, the department underscored, "Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX." But opponents of Title IX now want to douse the department's enforcement efforts.
Thursday, DeVos met with advocates on both sides of the issue to decide how the Trump administration will handle Title IX. It's a discussion already made fraught by the Education Department's acting assistant secretary for civil rights, Candice Jackson, who made the inaccurate and — in her own words — "flippant" assertion Wednesday that, in "90 percent" of campus sexual assault investigations, there's "not even an accusation that these accused students overrode the will of a young woman." Jackson has apologized, but I urge DeVos to consider the facts, and how easily they may be mischaracterized as she moves ahead on this issue.
Opponents of Title IX's application to campus sexual assault argue that campus disciplinary tribunals are kangaroo courts, ill-equipped to adjudicate sexual misconduct. But since the early part of the 19th century, educational institutions have used campus disciplinary tribunals to adjudicate all kinds of misconduct, from plagiarism to rioting.
Colleges and universities have occasionally adjudicated cases even more grievous than rape. In 2013, for example, a fraternity hazing incident in Pennsylvania ended in the death of a pledge by blunt force trauma. The coroner ruled the death a homicide, but the prosecutor did not file charges until two years later. The college, however, pursued disciplinary action against the students involved. Hazing and homicide are both serious crimes, but no one in that case said that the campus was ill-equipped to adjudicate the misconduct. People recognized the obvious: the college needed to protect students from harm.
Opponents argue that campus adjudication undermines the rights of those accused of sexual assault. Libertarian commentator Cathy Young, for example, has described Obama-era Title IX guidance as "marred" by a "polarizing ideology of presumed guilt." Title IX, though, isn't designed to advantage complainants over respondents. The guidance requires equal treatment of both accuser and accused, including prompt notice about procedures and rights for each. The guidance states: "Throughout a school's Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence. The complainant and the alleged perpetrator must be afforded similar and timely access to any information." It emphasizes that Title IX requires "adequate, reliable, and impartial investigations of complaints."
Some colleges fail to implement Title IX equitably, either denying victims a safe environment, as Title IX requires, or denying accused students disciplinary fairness, in ways that Title IX does not call for and that the Constitution does not allow. In these cases, accused students are suing colleges and even lodging complaints for gender discrimination under Title IX. And campuses are responding — as they must — when students prevail on either side.
We must strongly protect due process. However, opponents tend to object to campus adjudication of sexual assault, but not campus adjudication of any other serious misconduct. Their single-mindedness suggests a stronger interest in narrowing the definition of sexual assault than in protecting due process.
Opponents of Obama-era guidance argue that the prior administration lowered the standard of proof in campus disciplinary proceedings from "clear and convincing evidence" to "preponderance of the evidence." Not so. Most colleges and universities had no expressly stated standard of proof in their student conduct codes before the guidance, and, of those that did, eight out of 10 schools used the preponderance standard.
Preponderance is the standard of proof that applies throughout our justice system, except when life or liberty is at stake. Since at least 1995, and during multiple presidential administrations, the Department of Education required the preponderance standard. Continuing to require it for campus sexual assault adjudication balances the equities between the parties appropriately.
Finally, opponents of Title IX argue that criminal courts are just better equipped than campuses, so victims should report their rapes to the police instead. But most allegations of campus sexual assault aren't reported to police. Sexual offenses rank among the least reported of serious crimes, and, once reported, they're frequently not prosecuted.
The campus system offers substantial advantages. Colleges can protect students in ways police cannot. Colleges can offer counseling, move students into different classes or dorms, and provide tutors to help students catch up when incidents jeopardize their academic progress. Schools can promptly discipline those found responsible for misconduct. Greater remedial flexibility on campus ensures students have equal access to education — the point of Title IX.
Title IX's mandate should be unobjectionable: to prohibit discrimination against students based on sex and ensure that they have equal access to education. And at the end of the day, DeVos and I share a responsibility to students. Because sexual assault impedes students' educational opportunities, she should continue to prioritize the vigorous, equitable enforcement of Title IX.