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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  • Mensa Member

    I have never understood colleges having their own quasi legal system for sexual assault. (the same for the Catholic church)

    Shouldn’t all cases be referred to real police?

    It’s what my public school and church does. The first call I make is to the police or other protective services, not to my boss or pastor!

    Obviously, universities need a policy for when an assault is alleged. The hardest one is what to do with the students durning the investigation and trial.

    But the due process is for the legal system.

    • Hannah

      Classic example is the college I almost went to. Heard from a friend who goes there that there was a rape on campus in the parking lot. To avoid dealing with the bad press, they expelled both the rapist and the victim. Made me so angry and also glad I chose not to go there. This should have been handled by the police, not the students who worked as Security.

      • Mensa Member

        Now I’m sorry I disagreed with you above! 😉 I could not agree more.

        I have no doubt that schools and churches don’t first call the police because they are worried about image problems.

        • Hannah

          You can still disagree with me on issues but share some in the end.

  • Charles Burge

    Something that the left absolutely refuses to admit: that so-called “rape culture” is a direct result of hook-up culture. If people still held to the idea that sex should be restricted to marriage, then we would not be having these problems today. This also illustrates that God did not make His commandments in order to restrict our freedom. He did so in order to protect us from destructive and hurtful consequences.

    • Mensa Member

      >> Something that the left absolutely refuses to admit: that so-called “rape culture” is a direct result of hook-up culture.

      I don’t refuse to admit your assertion. But, some evidence might help.

      I am older than the “hook up culture” and I’ve heard multiple stories of date rape (the most common) including among some close friends. I can’t think of a single case where the rapist was brought to justice.

      I’m not defending “hook-ups” but it kind of seems like you are s1u+ shaming.

      • Charles Burge

        I’ll address your engagement with Hannah as well as this response, since you genuinely don’t seem to understand the point. The point is that hook-up culture creates an expectation among males (I’m intentionally not calling them men) that they are entitled to sex whenever and wherever they want it. There’s an old truism that says “Why buy the cow when you can get the milk for free?” That may seem trite, but it’s an accurate portrayal of human behavior. If males males were forced to marry a woman and treat her honorably in order to get sex, then many of these societal problems would simply vanish. It has nothing to do with shaming. It has everything to do with the fact that women have the power to shape male behavior, and in current culture, they wield that power very poorly.

        • AndRebecca

          I just looked at a couple of Katy Perry music videos on you tube. One is called “Straight Stuntin.” If this is what college age people are looking at, and the videos have millions of views, these kids are sick and perverted – and not just the guys. I think they stopped teaching in the schools and are only into brainwashing. They want a society where materialism, indecency and secular humanism rule (as pointed out by Pastor John McArthur) and this is what they are teaching in the colleges. It’s sicker than we even know.

      • AndRebecca

        Many years ago the universities were for Christian marriage and Christian dating. Things were nice for women on campus. There were women only dorms – and wild parties, drinking and drugs were not accepted on or off campus. It was unlikely a woman would get raped unless some hideous fiend managed to get on campus and committed the crime. Today, it is socially acceptable for college women to put themselves into all sorts of situations where a college man would believe they want sex. And they have sex at parties and in the dorms. Certain college dorms have worse reputations than others. And, other changes have happened… All contribute to a morally loose situation. Sex increases. Rape and lying about rape increase. Why this is a puzzle to those in charge is beyond ridiculous.

    • Hannah

      I’d also argue that America doesn’t have a “rape culture” simply because of how we treat the allegations. We don’t demonize the alleged victim but rather go to great lengths to protect and comfort them. Unfortunately, the Left has taken this tendency of ours and warped it into a way to make *all* allegations be deemed as valid rather than using a critical eye to discern truth from lie. Sex should stay within marriage, and all these problems either diminish or go away completely.

      • Mensa Member

        I’m on “the Left” and I acknowledge that this is a dilemma for us.

        1) We tend to believe the victims. It’s rare for victims to lie about being raped. Rape is vastly UNDER reported. not over-reported.

        2) We believe in the presumption of innocence. Like I said, on rare occasions people do lie.

        Can you see how this is hard for us on “The Left?” The Right doesn’t have this problem because they tend to blame the victim.

        • Mensa Member

          Could you say more about this:

          >> Sex should stay within marriage, and all these problems diminish or go away completely.

          I can read this two ways and both are bothersome.

          1) Are you saying that women are getting raped because they aren’t married?
          or
          2) Are you saying that married men don’t rape?

          I’m pretty sure you mean something else but I can’t think of what.

          • Hannah

            Of course you’d twist it that way.

            1) Sensationalized question that’s laughable in its farfetched assumption. Obviously not because rapists (of both genders) don’t seem to care if their victim is married or not. It will still happen but the issues of “morning after regret” will diminish if sex is kept to marriage only.

            2) Again, sensationalized question that deserves the mockery given it. Both sexes are capable of abusing their spouse within marriage, which is why a Godless marriage will never be healthy. Lack of respect and selfishness are the cause of many conflicts within marriages, and unfortunately those who are married aren’t protected from abuse. It can happen and has happened.

            Don’t take up the tactics of lesser people and bait others. Exhibit common sense and try not to stoop to the actions of your political party.

          • Mensa Member

            I’m an engaged reader and that’s both a curse and a blessing. I really wanted to know what you were saying. No matter how I read your sentence, it seemed like you were saying that marriage is a solution for rape.

            I think I better understand what you believe: rape will still happen but married people are less likely to make a false rape claim for “morning after regret.”

            I don’t believe that “morning after regret” is a major driver of rape charges. Yes, rapists and their defenders often make this claim.

            But I think the overwhelming, vast majority of ashamed women (and many guys) keep their mouth shut and hope it’s forgotten. To make a false rape charge puts a spotlight on the sex, just the opposite of what a regretful person wants.

            (And thanks for the presumption that I’m not one of the lesser people! I think the same of you.)

          • Hannah

            Essentially, sex outside of marriage has far more repercussions than within marriage. That doesn’t exclude issues entirely, but following God’s rules tends to result in fewer complications and happier relationships.

            Can’t rightly tell if that last bit was sarcastic or not.

          • Jim Walker

            I want to address the “morning after regret”.
            In our current “modern” day society, if girls do not have sex by 16, they are abnormal. How sad.
            My eldest daughter told my wife that she felt left out when her friends speaks about guys, its always lead to sex and sexual fantasies. She does not have such thoughts and ask if she is normal.
            With porn just a click away, men (or women) were “educated” by satan.
            If all these vile stuff are remove, there will be lesser temptation and with the right moral education system, one of which is the teachings that sex is meant for marriage, we will greatly improve our society as a whole.
            It is a sad fact that sex education in schools teaching kids that, if they must do it, use a condom, already failed before they began.

        • Hannah

          Did I say we blamed the victim? Also these “rare” occasions are becoming more and more common as the years progress. The presumption of innocence doesn’t seem to extend to both sexes, it seems, and that alone is worthy of reform. Men are just as capable of being raped as women, and I’d argue that male rapes are more vastly unreported than female. Not saying neither happen ever but the stigma of men being raped is treated with contempt and mockery. Honestly, I’ve met more men who’ve admitted that they were raped than women. Again, not saying neither happens ever.

      • Kevin Carr

        So true, in the case of Matt Boormeister (USC) was just kicked off the football team for horseplay with his girlfriend, someone took it out of context, one person “investigated” it, despite his girlfriend’s objections and explanation of what was going on he was kicked off the team. There was the Duke “rape scandal” a few years ago. There are some on the left that view all males as potential rapists. That seems to help further unfair prosecutions of the innocent.

    • Blaming “the left” for anything is silly, a straw man boogeyman—it has little defined meaning, and even when defined it’s a usually false and hasty generalization about the majority of folks who actually vote leftist. Political right extremists neither represent nor speak for the bulk of the political right; the same logic applies to the political left and every other political position.

      The “right” vs. “left” only makes sense when both sides are clearly defined—and that specific applied definition is not a constant but determined by context. The original usage was in France, with absolute monarchists on the right and constitutional monarchists on the left. A person might qualify as either or both, dependent on how specifically you’re defining the terms. This is why I call myself a moderate; though the conventional definitions used by people in general would label me a conservative on the political right, actual usage and perception of the terms tends to be rather fluid.

      That aside, if the “rape culture” is the result of the “hook-up culture”, then you should see reduced perception of entitlement in other cultural dynamics. This is demonstrably false. Spousal rape and other domestic abuse is quite high in courtship model environments—and complementarianism frequently (not always, but frequently) gets used to excuse and cover it.

      Does that mean courtship and complementarianism are necessarily causing spousal rape? Of course not! But by that same logic, “hooking up” (which you don’t really define, but by which I assume you mean casual sex even though the current generation of young adults has been shown to be statistically less likely to engage in it than their parents) isn’t necessarily causing rape.

      Rape is still very much an underreported crime, false allegations have been statistically shown to be extremely rare in general, and victims are still very likely to be shamed and blamed. (This is demonstrable and happens all the time—and far outnumbers the situations where victims are believed out of hand, which makes it cherry-picking to rely on the handful of “…Oops” cases.) Even human trafficking can have lower penalties than drug running!

      The pendulum is often so far into victim-shaming, assuming the accuser is the guilty one—just look at all the hullabaloo in the recent Taylor Swift case, and the lawyer questions that resulted in Swift’s “My [butt] is in the back of my body”—that the swing into assuming the accused is probably guilty is an understandable side effect, despite how problematic it is, too. Being dismissive about the overreaction ignores why it developed to begin with. Overreactions occur for two main reasons: in response to a common behavior that has been hurtful to others, or in response to questions about a normalized behavior. That means overreactions are often flags that something is wrong, even when they themselves are wrong.

      The core issue isn’t left vs. right. The core issue is a person believing themselves entitled to what they want from another person, which can happen in any dynamic—and that person being in a group of likeminded others, producing an echo chamber and buddy system that perpetuates and expands the effects. The logical fallacies and poor definitions used in general in discussions just worsen situations.

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