You might have missed it, but Betsy DeVos had a brief shining moment as President Donald Trump’s Education secretary. On her initiative, the department rewrote the rules for how colleges and universities handle allegations of sexual assault on campus, reining in a system that was stacked against the accused person. And for the most part, she did that without returning colleges to the bad old days when complaints of assault were routinely ignored and victims made to feel ashamed, afraid and abandoned.
The changes engineered by DeVos need minor adjustment but not an overhaul and certainly not a swing back to the rules adopted by the Obama administration, which applied to any institution of higher learning that received federal dollars. While those rules were in effect, courts threw out dozens of expulsions and other disciplinary actions taken against men — the accused were mostly men — because their colleges hadn’t given them due process.
The Obama administration had good reason for radically changing the rules. Colleges were routinely sweeping allegations of assault and harassment under the rug, failing to report them as required and giving perpetrators a free pass or a slap on the wrist. More than the rules were needed; a transformation was in order for a campus culture that effectively said women were responsible for these assaults, and in any case, they weren’t a big deal, and the victims should stay silent.
The message has gotten through, but the rules, which were often unclear, led to excesses that the Trump administration was right to correct. It’s worth noting that DeVos maintained the key aspects of the original rules — the right of accusers to file complaints and have them taken seriously. Now that President Joe Biden is ordering a review of the new standards, he should avoid the extremes of his days as vice president and instead aim for a nuanced set of procedures that is fair to both sides.
It’s not easy. Sexual assault cases, involving college students or anyone else, are notoriously difficult to prove one way or the other, unless they involve multiple transgressions with multiple victims or the rare third-party witness.
No set of rules can fix this, but the standards and procedures laid out can promote equitable truth-seeking. Unfortunately, the Obama-era directive to colleges not only ignored common traditions of due process for the accused but put colleges on notice that they would be under tremendous scrutiny for how well they treated accusers, which meant many of them swung too hard in that direction.
Though colleges were supposed to give accused students timely, written notice of accusations against them, they often provided that information many weeks after a formal complaint was made, or revealed so little information that the accused couldn’t understand or respond to the allegation. The Obama administration’s guidance letter called for severe limits on the accused person’s right to cross-examine, even through an intermediary. The letter also directed colleges to restrict the activities of the accused to the extent that they often had to stop meeting with their clubs, drop courses or switch dormitories, even though no evidence had yet been introduced against them.
A 2015 Harvard Law Review article described a case in which a male student at an Oregon college was ordered to stay away from a female student who said he reminded her of the man who had assaulted her months before and thousands of miles away. The order meant the male student couldn’t work at his job or live in his college housing — even after the school found him innocent of any sexual misconduct.
Though accused people were supposed to be allowed to introduce evidence on their own behalf, colleges sometimes didn’t accept that evidence or take it into consideration. Perhaps worst, the person assigned to investigate assault complaints at colleges also frequently adjudicated the cases.
DeVos undid all that with new rules explicitly outlining the right of the accused person to be presumed innocent at the beginning of the complaint process, to be fully informed about the complaint and to have any exculpatory evidence taken into account. The accused student’s activities could not be curtailed unless there was some sign that his or her presence would be legitimately problematic for the accuser. The accused had a right to cross-examination through a third party, and the investigator could not also serve as the “judge.”
At the same time, DeVos bolstered the rules for providing services to students who said they had been assaulted, including granting any changes to classes they might request, whether or not they filed a formal complaint.
These are all changes worth keeping.
Where DeVos went overboard was in the level of evidence needed to determine guilt. The Obama administration had ordered schools to find an accused student at fault if the “preponderance of evidence” — anything more than 50% — went against him or her. DeVos allowed colleges to choose between that and the more demanding “clear and convincing evidence” standard. That change didn’t make much of a difference; most colleges announced that they were sticking with the less stringent standard. That’s the right way to go.
If accused students are presumed innocent at the start and given a chance to provide evidence and cross-examine, a preponderance of evidence should be enough to reach a fair finding.
Biden has a chance to be thoughtful rather than reactive here. His decision will determine whether sexual assault cases are taken seriously by colleges, without riding roughshod over the rights of the accused.
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