A Senator and Congresswoman, both of whom are ranking Republicans on congressional committees overseeing education, have written to the new Secretary of Education, Miguel Cardona. They urge him to keep in place his predecessor, Betsy DeVos’, rules governing sexual assault in educational settings.
The DeVos rules made enormous changes to how schools and colleges handle allegations of sexual assault. Because this is a complex issue, this post will just discuss higher education. Among other changes, DeVos’ rules allow for a student accused of sexual assault to demand a hearing before they are found guilty. The rules allow him, through a representative, to ask questions of his accuser. They grant accused students the presumption of innocence. These are all vast improvements over the previous regime in which a student could be expelled from college as a sex offender with very little opportunity to defend himself.
However, the DeVos rules have their own problems. President Biden ran for office promising to find common ground with Republicans. He couldn’t do that with his $1.9 Trillion COVID relief bill, so this issue represents an excellent opportunity for him to make good on that promise.
One of the biggest problems with the DeVos rules is that they define sexual harassment too narrowly. Under the rules, behavior is only sexual harassment if it is “severe, pervasive, and objectively offensive unwelcome conduct”.
The use of the word “and” is crucial here. The Equal Employment Opportunity Commission defines harassment as severe or pervasive. A lot turns on little words like “and” versus “or”. For example, asking your co-worker or classmate out on a date is certainly not “severe”, but asking her out three times a day for month is “pervasive”. If behavior is pervasive and offensive, but not severe, that should still be considered sexual harassment. And if it is severe and offensive but not pervasive, say occasional but persistent rape jokes, this should also be considered sexual harassment. So this is an area where Biden should press ahead to make changes.
Also, under the DeVos rules, colleges would not have the responsibility under Title IX to investigate student-on-student sexual assault at off campus parties unless the party is in a university-affiliated space such as a fraternity. Being raped by another student at an off campus party would obviously impact the victim’s educational experience and it should be covered by Title IX.
But Biden should leave many of DeVos’ changes alone. Allowing the accused student’s representative to pose questions directly to the witnesses against him is controversial but it should continue to be allowed. One concern is that fear of cross-examination will keep sexual assault survivors from reporting the assault to campus authorities. That is a legitimate concern but it doesn’t justify the pre-DeVos practice of not letting accused students, or their representatives, examine witnesses other than the alleged victim. A great example is a recent case at the University of Cincinnati. A young woman alleged that she was sexually assaulted by another student. The university assigned one of its detectives, William Richey, to investigate the allegation and to interview the key witnesses.
According to the court decision there was evidence that Richey was far from impartial. In fact, he apparently professed his love for the alleged victim. She in turn, had posted a picture of herself on social media wearing a police hat and vest with the caption “my detective loves me.” While reasonable people could disagree about whether the accused student should have been allowed to question the alleged victim about her relationship with the detective, there was obviously no reason to shield the detective from such questions. Yet the accused student had no opportunity to question Richey about any of this.
It’s true that the DeVos rules also allow cross-examination of the student bringing the charges and this is dangerous ground. Sexual assault is traumatic, and the prospect of being cross-examined can discourage reporting. Under-reporting is perhaps the single biggest issue in fighting sexual assault on campus. On the other hand, a fair hearing is almost impossible without cross-examination. There have been cases where the accusing student sent text messages or other messages that strongly imply the innocence of the accused student, yet did not have to answer any questions about those messages. In one case, the accusing student texted her friend that the young man she slept with and accused of sexual assault was her roommate’s boyfriend and if her roommate found out she “would literally never speak to me again.” She also texted that the young man was “too drunk to make a good lie out of sh-t”, and “It’s pretty obvi [obvious] I wasn’t an innocent bystander.” She did not have to answer questions about these texts and the accused student was expelled.
Title IX and sexual assault shouldn’t be a partisan issue. It is a complicated set of concerns in which all the parties have a great deal at stake. Biden and Congressional Republicans have plenty of room for compromise here.