Betsy DeVos & Title IX: Time to Revisit Obama’s ‘Dear Colleague’ Letters

A well-intended effort to rein in sexual assault on campus turned into a tipping of the scales in favor of accusers.

Sexual assault is a horrific crime. It must be taken seriously. But mislabeling someone as a rapist is also unjust. If we don’t reserve the term for when it’s truly warranted, it loses meaning and people become cynical. “Honest scales and balances belong to the LORD.” A fair process is in everyone’s interest.

 

Sexual assault was a problem we once minimized. But has the pendulum now swung in the other direction?

A few weeks ago Education Secretary Betsy DeVos signaled that she would revisit the Obama-era policy on how colleges should handle sexual assault allegations. DeVos said, “We can’t go back to the days when allegations were swept under the rug.” She also noted that “a system without due process ultimately serves no one.” Sexual assault was a problem we once minimized. But has the pendulum now swung in the other direction?

Background

The Obama era policy came from a pair of “Dear Colleague” letters. The first was written in 2011. The second came in 2014. While the principle that schools should look into complaints wasn’t new, the procedures Obama’s officials called for were both new and controversial.

Colleges were asked to investigate claims quickly — typically within 60 days, from start to finish—to discourage cross-examination of the accuser, and to use a “preponderance of the evidence” threshold to determine guilt. That means if you think there’s a 50.1 percent chance that someone is guilty, you declare them guilty. The burden of proof in our criminal courts is higher — “beyond a reasonable doubt.” Also, schools were discouraged from having hearings like the ones you’ve seen if you ever did jury duty. Instead, one person — the university’s Title IX officer — would serve as detective, prosecutor, and judge.

The Importance of Due Process

When Harvard University received the “Dear Colleague” letters, they launched a new campus-wide policy. Twenty-eight members of the Harvard Law School faculty published their strong objections to this new policy. The faculty wrote, “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, and are overwhelmingly stacked against the accused.” They were concerned that those accused didn’t have a good way to learn in advance about the evidence to be used against them, to cross-examine witnesses, or to get a lawyer.

Of course, Harvard wasn’t alone. Schools all over the country put similar policies in place. A well-intended effort to rein in sexual assault on campus turned into a tipping of the scales in favor of accusers. Schools wanted to show they were serious, and they feared the loss of federal funds, so they implemented policies that minimized the rights of the accused, and that churned out guilty verdicts.

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