Most recently, I’d been writing about due process, a concern that lessened a few years ago as both government and colleges changed their policies on how campuses adjudicate sexual assaults. And, of course, with pandemic closures, students who aren’t on campus can’t commit campus rapes. But as I listened to Lhamon testify, I got the feeling that soon I would be back to writing and our country would be back to debating just how much risk we should take of possibly punishing innocent people accused of rape in an effort to support and protect the victims of the guilty.
Lhamon has been nominated for a position she also held during the Obama administration, as that office was overseeing a series of controversial policy decisions about adjudicating campus rape. In 2011, under Lhamon’s predecessor, the Education Department issued informal guidance that instructed colleges to make it much easier for victims to bring charges, and for disciplinary boards to sustain them. Most controversially, the letter required that schools employ a “preponderance of evidence” standard, finding the accused guilty if it was more likely than not that a violation had occurred, even if there was still room for considerable doubt.
Under Lhamon, who became assistant secretary for civil rights in 2013, the office issued further guidance that steered campus procedures toward victims' rights. Critics charged that the resulting disciplinary processes were often little better than show trials, designed to railroad accused boys into adverse verdicts. This became a contentious topic with the rise of the #MeToo movement. Over time, those of us who wrote about campus assaults argued less about how bad the rape crisis was, or what remedies were needed, and more about basic questions of procedural justice, such as the presumption of innocence and the right to interrogate your accuser.
That debate was inevitably politicized, with Democrats largely arguing for victims’ rights and Republicans by and large arguing for robust protections of due process. (Which, interestingly, is the opposite of the stance those parties usually take on crime.) President Trump’s education secretary, Betsy DeVos, reversed the Obama-era guidance and, eventually, replaced it with formal rules that did much more to protect the accused — too much, according to critics, who took issue with various provisions, such as a right to cross-examine the accuser or the directive that to meet the bar for discipline sexual harassment had to be objectively offensive, severe and pervasive.
One of those critics was Lhamon, who tweeted in 2020 that Devos was “taking us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” In last week’s hearing, she stood by that assessment, which suggests that she would like to relax due-process requirements through new rulemaking, a process that has already begun under Education Secretary Miguel Cardona. When Republicans questioned her about what rules, exactly, she would change, she became evasive.
Whatever new rules might be proposed, they will not mirror the Obama-era guidance exactly, because in the interim the courts have begun to weigh in. Historically, courts have been extremely reluctant to second-guess the internal disciplinary processes of colleges and universities. But they have begun to intervene more and more often, possibly because the growing volume of cases compelled them to.
Since 2011, hundreds of cases have been filed against schools, almost all of them by or on behalf of male students, alleging unfair proceedings. As of this writing, plaintiffs have won more cases than they have lost. Lhamon acknowledged in the Senate hearing that the Office of Civil Rights would be bound by rulings in the 3rd and 6th Circuits that require certain basic protections for the accused.
Still, it seems that any Biden administration rules would emphasize victims’ rights. On the campaign trail last year, Biden himself declared that the DeVos rules served to “shame and silence survivors” and promised to bring them to a “quick end.”
Whatever your views on due process, even in civil proceedings on college campuses, this potential policy ping-ponging should worry you.
One of the basic components of justice is knowing what is considered a violation and how violations will be handled. That’s impossible if the definitions and standards change with every incoming administration.
So we’re going to need to have another “national conversation” about campus rape, one that tries to find some rough consensus-balance between the need to protect victims and the need to protect people who are accused of terrible crimes. And then Congress will need to step in and enshrine that consensus into a detailed national law, rather than leaving the hard questions to the changeable will of bureaucrats.