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

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

Education Secretary Betsy DeVos, listens to Vice President Mike Pence speak during a listening session with the historically black colleges and universities at the Eisenhower Executive Office Building on the White House complex in Washington, Monday, Feb. 27, 2017.

By Alex Chediak Published on August 3, 2017

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.

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

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.   

What about Cases like Brock Turner?

Last year I called for a greater response from conservatives to the sexual assault conviction of former Stanford student-athlete Brock Turner. Turner was expelled by Stanford and barred from ever setting foot on campus again. But not that’s what struck me about Turner’s case.

Turner was interesting because his guilty verdict came unanimously, from a jury, after a fair trial. Turner had access to a legal team, to the prosecutor’s evidence, and to cross-examine his accuser. While many think that Turner got off easy, he was required to be registered as a sex offender.

Here’s the point: Sexual assault is illegal. Report it to the police and the District Attorney’s office. Let them pursue it in court. Our criminal justice system is far better equipped to handle these matters than any campus board. And their verdict and sentence have teeth.  

Not that universities are off the hook. They have a duty to report, and where problems are found, they should examine their culture and make changes. But why should schools have much lower standards for determining guilt than our criminal courts? Don’t we cherish the principle of “innocent until proven guilty”? It makes guilty verdicts all the more meaningful.

Has the Pendulum Swung Too Far?

Remember the guys on Duke’s lacrosse team who were presumed guilty by the media, but later found to be innocent? Or the campus rape-detailing Rolling Stones essay that was later retracted? Sometimes “the one who states his case first seems right, until the other comes and examines him” (Proverbs 18:17). There’s lots of evidence that the Obama-era policies have led to innocent parties being found guilty. These students often sue: A Voice for Male Students, an advocacy group, is currently tracking 170 lawsuits from students against universities on matters related to campus sexual assault proceedings.

Sexual assault is a horrific crime. It must be taken seriously. But mislabeling someone as a rapist is also unjust.

A recent study by UCLA professor John Villasenor found that an innocent student has as much as a one-in-three chance of being found guilty by today’s campus sexual assault tribunals. Oh, and it’s not just men: Washington State University has a case where a man accused a woman of assaulting him. While she claims the sex was consensual, and that the man complained only because his friends later teased him, she was expelled.  

Important caveat: when I say “innocent,” I don’t mean blameless or exemplary. As Christians, we don’t approved of sex among unmarried couples (Hebrews 13:4), much less casual sex while drunk (I Thessalonians 4:3-8). Sex is meant to celebrate a lifelong monogamous commitment. The sex act profoundly deepens the bonds between two people. There are always strings attached. But if a man and woman are drunk, have sex, and she later regrets it — as she likely will — that doesn’t make the guy a rapist. A cad, yes, but not a criminal.

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” (Proverbs 16:11). A fair process is in everyone’s interest. Let’s hope Betsy DeVos can move us in that direction.

 

Dr. Alex Chediak (Ph.D., U.C. Berkeley) is a professor at California Baptist University and the author of Thriving at College (Tyndale House, 2011), a roadmap for how students can best navigate the challenges of their college years. His latest book is Beating the College Debt Trap. Learn more about him at www.alexchediak.com or follow him on Twitter (@chediak).

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