OPINION | Democrats abandon due process legacy for flawed sexual assault policy

In a speech Thursday at George Mason University, Education Secretary Betsy DeVos forcefully advocated for fairer procedures in the handling of campus sexual assault allegations.

The full effects of her address will not be clear for many months, as the Education Department solicits notice and comment on new Title IX regulations. But DeVos’s unusually powerful remarks — and the furious opposition they generated from some Democrats — confirmed a remarkable political transition, in which congressional Democrats, long at least somewhat sympathetic to campus civil liberties, have emerged as bitter foes of campus due process.

As a result, the task of creating a fairer Title IX system has been left to DeVos and other officials in the Department of Education.

DeVos to rewrite Obama-era school sexual assault policy to better protect the accused https://t.co/3Alx7nM0xC pic.twitter.com/4Qq75b5QiV

— The Hill (@thehill) September 7, 2017

In 2011 and 2014 guidance, the Obama administration dramatically reinterpreted Title IX, the federal law banning sex discrimination in schools that receive federal funding. In 2011, for the first time, the federal government claimed authority to dictate the specific procedures colleges used to adjudicate sexual assault allegations.

Each of the demanded changes — from lowering the standard of proof to allowing accusers to avoid cross-examination — increased the likelihood that an accused student would be found guilty.

{mosads}Though these initiatives never received congressional approval, they enjoyed strong support from congressional Democrats. The rare occasions when congressional Democrats mentioned due process or the rights of the accused almost always came in the context of denigrating the importance of such concerns. With the exception of Senators Lamar Alexander and James Lankford, meanwhile, congressional Republicans mostly remained silent.

The reaction to yesterday’s remarks reflected this pattern.

Representative Nita Lowey denounced as “perverse” DeVos’s decision to abandon Obama-era guidance and instead solicit notice and comment for new Title IX regulations. (The New York representative did not indicate why the requirements of the Administrative Procedure Act should not apply to Title IX.)

Senator Claire McCaskill pledged, “I’ll fight with everything I’ve got to #StopBetsy from washing away all the progress we’ve made protecting survivors & making campuses safe.” (The Missouri senator offered no explanation as to why ensuring campus safety requires denying accused students fair treatment.)

Sanders: Congress must undo DeVos’ “outrageous” rollback of Obama-era campus sexual assault policy https://t.co/Upm9X1yHlX pic.twitter.com/Sw0Dw1MLFA

— The Hill (@thehill) September 8, 2017

And Senator Kirsten Gillibrand claimed that DeVos’s address “betrays students.”

Gillibrand’s statement was especially odd, given that DeVos opened her discussion of campus matters by deeming acts of sexual misconduct “reprehensible, disgusting, and unacceptable. They are acts of cowardice and personal weakness, often thinly disguised as strength and power.”

Moreover, the secretary praised Title IX’s role in ensuring that “all students can pursue their education free of discrimination.” DeVos commended the work of schools in making “appropriate accommodations” for campus accusers, including “academic accommodations such as adjusting schedules, changing dorm assignments, and postponing papers or exams.”

The two most troubling reactions to the DeVos speech came from Senators Bob Casey and Patty Murray. Casey maintained that “the current reg[ulation]s under Title IX, & the law . . . already ensure a fair & impartial process for all students.”

Beyond appearing to confuse Obama-era guidance for “regulations,” it seems that Casey was unaware of a decision from only a few weeks ago in his home state, from an Obama-nominated federal judge. On August 18, U.S. District Judge Matthew Brann blocked Penn State from suspending a student that the school had found guilty of sexual assault. The judge viewed with particular “skepticism” the university investigator’s decision to redact portions of the accused student’s written statement, in which he had offered reasons for doubting his accuser’s credibility.

Under Penn State rules, the investigator’s decision prevented the student from raising this evidence in the hearing that decided his fate at the school, a development that essentially ensured a guilty finding. The Penn State decision was one of dozens by state and federal judges finding that colleges — under heavy federal pressure — had treated accused students unfairly. Is this a record that Casey considers consistent with “a fair & impartial process for all students”?

Murray, meanwhile, released a statement claiming that “the standard of proof guidance provided in the [2011] letter has led to more women and men coming forward about their sexual violence experiences.” No evidence exists that students who file complaints are even aware of the standard of proof in campus disciplinary matters, much less that this rather technical issue has led to an increase in complaints. But as a reflection of why so many congressional Democrats demand retention of the Obama-era policies, Murray’s comments made some sense.

The policy that DeVos inherited from her predecessors operated under the premise that colleges could increase reporting of sexual assault by manipulating campus adjudication procedures to create a campus system that would focus on vindicating the accuser’s allegation.

However well-intentioned, this approach is inconsistent with basic fairness. As Judge F. Dennis Saylor wrote in an opinion allowing an accused student’s lawsuit against Brandeis to proceed:

“Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts. If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.”

Sentiments such as these have come not only from federal judges, but also from dozens of law professors at Harvard and the University of Pennsylvania, and (in less robust form) in reports from the American Bar Association and the American Council of Trial Lawyers.

Support for due process should be a bipartisan issue — it seems highly unlikely that most of the above figures are supporters of Donald Trump. But, at least on campus, it appears that for some time to come DeVos and the Education Department will need to work on their own.

Hopefully, in the future, Democrats will revive the party’s more traditional backing for due process rights.

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”

The views expressed by contributors are their own and not the views of The Hill.