Betsy DeVos is (ack!) kinda sorta right about campus sexual assault and Title IX

Due process matters. And it’s another thing university administrators are bad at.

Campus sexual assault is a scourge on higher education. It has blighted the lives and educational prospects of far too many young women, and colleges have not done nearly enough to address it. Secretary of Education Betsy DeVos, meanwhile, is the worst thing to happen to American education since segregation. And so it gives me no pleasure at all to say that some of the recent changes to Title IX enforcement are probably good ones.

Not all of them, to be sure. Requiring that the conduct be both “severe” and “pervasive” in order to violate Title IX means that some conduct illegal in the workplace under Title VII is now permitted on campus. And the timing is terrible — expecting schools to put new policies into effect by August 14, 2020, with a pandemic raging, is ridiculous.

But the expanded definition of sexual harassment to include dating violence, stalking, and domestic violence is an improvement. And so is rebalancing of the rights of accused students. Perhaps with the best of intentions, the prior policies eroded some core due process protections for the accused. These changes are a needed corrective.

For those not familiar with it, Title IX is the federal law that seeks to provide equal educational opportunity for students regardless of sex or gender. It is perhaps best known for requiring schools to greatly expand their athletic opportunities for female athletes — but in recent years, it has become a tool against campus sexual harassment and assault, on the theory that this conduct, and schools’ failure to respond to it effectively, is a form of sex-based discrimination. For far too long, schools took a “boys will be boys” attitude toward even very serious allegations of sexual misconduct on campus. This situation had to change, and it did. But some of those changes went too far.

You might be surprised to learn that under the prior, Obama-era guidance, those accused of sexual misconduct had no right to a live hearing, or to cross-examine their accuser (through an attorney or otherwise). Only the “hearing officer” could do so — and that could be the same person as the one who investigated the initial complaint. The same administrator who took the complaint could also adjudicate the matter and impose punishment — in other words, the cop was also the judge and jury.

There are good reasons why we don’t allow this in criminal justice, why we separate evidence-gathering from decision-making and the imposition of punishment. It’s too easy for the biases of the person who talks to the accuser and gathers the evidence to color their judgment, one way or another. Our criminal justice system is far from perfect, but this is one thing it gets right.

The new guidelines also permit (though they do not require) schools to raise the standard of proof to the intermediate one of “clear and convincing” evidence. Formerly, the standard of proof was what lawyers call a mere “preponderance” of the evidence — a judgment that it is simply more likely than not that the crime happened. This is a far lower standard than the one you hear about on TV, for proving criminal conduct — “beyond a reasonable doubt.” We have that high standard because in criminal prosecution, the stakes are so high. We take the consequences of wrongful conviction very seriously — or at least we should.

It is undeniably true that a school disciplinary proceeding, which carries no possibility of incarceration, is not a criminal prosecution, with constitutional protections attached. And maybe a school should be able to impose academic discipline if it finds that someone cheated on a test, or plagiarized a term paper, without proof beyond a reasonable doubt. But sexual assault is criminal conduct, and being accused, found guilty, and kicked out of school for it, is not trivial. It is potentially life-ruining. Even the acccusation may stain a reputation permanently.

And the reality is, sexually inexperienced young adults often do not have the tools to understand all the shades of gray involved in sexual consent, from eager participation to grudging acquiescence. University training programs during freshman week hardly bridge the gap. For too many students, college combines dangerous risk factors for sexual assault: alcohol, sexual experimentation, and living away from home for the first time. It’s no surprise to learn that the first few months of college are the riskiest. We need to acknowledge that genuine misunderstandings are possible here, and neither law nor school policies do a good job of line-drawing where the granting and withdrawal of sexual consent is concerned.

What’s more, this is not simply a “believe women” situation. Although campus sexual assaults mostly conform to our stereotypes about rape (male perpetrator, female victim), female perpetrators and male victims are more common in cases of campus sexual assault than for sexual assaults in general. And while female college students aged 18–24 are less likely to be victims of sexual assault than their non-student peers, the reverse is the case for men of the same age.

Victims of sexual assault do have recourse to the criminal justice system. But it is grossly inadequate. For a variety of reasons, rape and related crimes are notoriously underreported, perhaps up to 80%. Many who report their rapes do not obtain justice. I am not blind to the many faults of law enforcement here — but I remain equally skeptical that a university disciplinary process is a superior alternative. Critics of the new policies claim they will deter reporting of campus sexual assault — and that might be true. But I am also not convinced that a student unwilling to call the police should be able to get another student kicked out of school for committing a crime, without even attempting to prove it beyond a reasonable doubt.

Sexual assault, on campus or off, is a classic intersectional issue, implicating pervasive stereotypes around both gender and race. Anyone who minimizes either the frequency or the gravity of false accusations of sexual assault, especially against Black men, simply doesn’t know enough about the history of lynching in America.

Our campuses must be made safer places from sexual assault. This will require the long hard work of eradicating rape culture and the threat it poses to the educational project. University discipline is no shortcut to a better understanding of sexual consent and sexual autonomy, or the removal of stigma around being a victim of sexual assault. The university is not an alternative to the criminal justice system.

As the saying goes, even a stopped clock is right twice a day. The DeVos Department of Education got it (mostly) right this time.

Agree? Disagree? Write to me at dianeklein66@gmail.com, or find me on Twitter @lawprofdiane.

law professor, amateur acrobat, gadfly, baker @Lawprofdiane

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