Balancing rights
President Joe Biden is honoring his promise to review federal rules relating to the way schools handle sexual assault and misconduct. By means of executive order, he has instructed the Education Department to comb through controversial Trump administration Title IX rules that bolstered the rights of accused students. The aim is to rescind or revise policies that fail to protect victims.
In his efforts to protect victims, Mr. Biden should avoid rolling back necessary due process rights for the accused.
Congress originally passed Title IX in 1972 to ensure equal access to college for men and women alike. It proved effective, as the number of women attending and graduating from college immediately began to increase. Initially, the focus fell on equal opportunities and scholarships for women interested in playing collegiate sports. By the 1990s, the statute’s purpose was reinterpreted to include protection from sexual harassment because such harassment was seen as an impediment to a student’s ability to pursue her or his education.
This is why colleges, rather than law enforcement, handle rape and sexual assault allegations, though students can decide to report such crimes to law enforcement if they so choose. Campuses are thus bound to work to prevent incidents of sexual assault as well as adjudicate them internally.
While conviction in a Title IX case on a campus is not the same thing as a criminal conviction in a court of law, it can have a ruinous effect on the life of the accused. That’s why the process should be treated with the seriousness that is warranted. That’s why due process protections are in order regardless of the venue for adjudication.
Some debate whether schools are best for dealing with assault allegations. But students may be more likely to report assault to campus officials, given the public nature of the criminal process and the dismal record of police prosecution of sexual assault. Also, college administration can exact immediate relief, like housing and class reassignment or nocontact orders.
No doubt: Title IX intentions are good. But the actual procedures for handling assault allegations were largely vague and up to interpretation and implementation by individual institutions. That translated to inconsistency. Donald Trump’s administration narrowed the definition of sexual harassment and standardized some procedures: requiring written notice of accusations to the accused, mandating a live hearing with cross-examination through a third party, and allowing both parties to retain representation. This made Title IX more reflective of the due process protections that are afforded to citizens accused of a crime. This was a nod toward a recognition that colleges and universities are not islands where citizens’ constitutional rights evaporate.
But women’s and victims’ rights advocates saw these changes as antivictim. They said that being cross-examined can cause trauma and discourage students from coming forward. That risk is real but is worth the reward of protecting everyone’s rights.
While the original intent of Title IX was to provide equal access to education, extending that umbrella to include harassment and assault has provided a good avenue for victims to come forward and pursue justice. That avenue must be preserved, protected, bolstered and further clarified. However, such protections should not come at the expense of any individual’s due process rights. The Trump administration’s rules provided balance; Mr. Biden’s team should proceed with caution.