Diane L. Rosenfeld teaches at Harvard Law School, where she is director of the Gender Violence Program.
Education Secretary Betsy DeVos last week announced a retreat from the Education Department's work to protect students from sexual assault. While demonstrating that she has given serious thought to the issue, DeVos's position is based on two fundamental flaws. As a result, she is poised to abandon laudable work done in the previous administration to help schools reduce the incidence of campus rape.
The first problem with DeVos's analysis is that it confuses a school's obligation to protect the civil rights of its students under Title IX with a defendant's rights in the criminal-justice system. Of course students in school adjudications deserve fair processes. They stand to lose an important privilege — access to a particular education. But criminal defendants stand to lose their liberty. As such, we reserve for criminal defendants the highest standards of due process — higher than what is necessary for a school adjudication. To conflate civil rights and the criminal-justice system is both misleading and legally incorrect.
Worse, confusing a school hearing with a criminal trial has the effect of inducing public panic that men will be falsely accused and found responsible for raping young women on campus. DeVos, who is not a lawyer, refers dismissively to the lower "preponderance of the evidence" standard that schools currently use in these cases. She fails to mention that this is, and has always been, the applicable standard for Title IX and other civil rights cases. Why should the fact that an offense involves sexual violence justify treating it differently? Indeed, to do so would be discriminatory in itself.
The second major flaw is DeVos's false equivalence between the experience of a student reporting a sexual assault and that of the student accused of the assault. While both will likely face lasting consequences from the case, the harms they can suffer are scarcely comparable. Students who report sexual assault suffer post-traumatic stress disorder and rape trauma syndrome with alarming frequency and striking similarities. Sexual assaults often result in severe depression and intense feelings of vulnerability, an inability to feel safe in one's own body.
Expulsion of students who commit these assaults helps reduce this trauma in two ways. First, a victim's pain is typically reduced if she or he does not have to encounter the perpetrator on campus. Second and more important, the threat of such expulsions deters future assaults, thus diminishing the number of students who must endure this pain. To be sure, students expelled for sexual assault commonly suffer reputational injuries and sometimes damage to their careers. These are substantial consequences, and we should strive to ensure that they are not imposed on innocent students. But they pale before the trauma typically suffered by victims.
DeVos highlights incidents in which students accused of sexual assault were treated unfairly by their schools. She laments that untrained administrators have sometimes acted as judge and jury, which may have caused some students to be wrongfully punished. But the answer to such cases is not to abolish the protections articulated in the Obama administration's Dear Colleague Letter.
Rather, that guidance gave critical information to schools on implementing long-standing regulations that had lain dormant without federal enforcement. The guidance requires that equal rights be given to victims and to accused students so that if one had particular rights at a hearing, so did the other. In fact, each case DeVos cited as evidence that the Obama letter should be scrapped was a violation of the guidance, as well as federal legislation that encodes the important principles of the guidance, the Campus Sexual Violence Elimination Act. She should focus on enforcing equality principles rather than giving up just because the system is not yet perfect — or perfectly enforced. We need to help schools that are trying to develop competence in preventing and addressing campus sexual misconduct, not retreat to a regime in which misconduct was rampant and largely unpunished.
Let's not throw the baby out with the bathwater. Our goal should be to make our educational institutions places where students are equally treated and safe to learn. The guidance provided by the Dear Colleague Letter could be improved. Even more important is assisting schools in complying with the letter — both by affording victims of sexual assault adequate protection and by making certain that students accused of assaults have fair and equal procedural rights. The Education Department should assume its responsibility to counsel schools on achieving fair processes, not abandon the project of purging our campuses of the scourge of sexual violence.
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