Cre­ate safe­guards in cam­pus probes

Many groups are call­ing for due process and fair­ness in stu­dent sex as­sault cases; here are some ideas to help

The Detroit News - - Front Page -

Betsy DeVos has re­ceived a bar­rage of crit­i­cism for dar­ing to say the Ed­u­ca­tion Depart­ment will over­haul the frame­work for cam­pus sex­ual as­sault in­ves­ti­ga­tions. But changes are long over­due, and DeVos wants pub­lic in­put from all sides. There are some good ideas to im­prove the sys­tem.

In her speech last week, DeVos laid out her ra­tio­nale for why changes were nec­es­sary. In th­ese in­ves­ti­ga­tions, thanks to a 2011 Obama ad­min­is­tra­tion dic­tate, ill-equipped univer­sity ad­min­is­tra­tors have been charged with de­ter­min­ing the guilt of ac­cused stu­dents. The re­sult has been a de­par­ture from due process that has harmed all stu­dents in­volved.

If jus­tice is in­deed the goal in th­ese pro­ceed­ings, a new pol­icy is vi­tal.

A re­cent re­port from the Foun­da­tion for In­di­vid­ual Rights in Ed­u­ca­tion (a pro-stu­dent lib­erty group DeVos has sup­ported, de­spite heck­les from her crit­ics) high­lights the loss of due process in dis­ci­plinary ac­tion at the na­tion’s uni­ver­si­ties. When it comes to sex­ual as­sault al­le­ga­tions, due process is most likely to get tossed. The find­ings in­clude:

“Eighty-five per­cent of Amer­ica’s top 53 uni­ver­si­ties re­ceive a D or F grade for not con­sis­tently en­sur­ing ba­sic due process rights.”

“74 per­cent do not guar­an­tee ac­cused stu­dents the right to be pre­sumed in­no­cent un­til proven guilty.”

“Fewer than half al­ways re­quire that fact-find­ers (the equiv­a­lent of the judge or jury) in cam­pus hear­ings be im­par­tial.”

“Col­leges did not sim­ply ‘for­get’ ob­vi­ous prin­ci­ples of fair­ness like im­par­tial­ity, the pre­sump­tion of in­no­cence, and the right to con­front one’s ac­cuser: They were re­act­ing to gov­ern­ment pol­icy that made it clear that stick­ing to th­ese prin­ci­ples was a ticket to in­ter­minable and in­tru­sive fed­eral in­ves­ti­ga­tions,” stated FIRE Ex­ec­u­tive Di­rec­tor Robert Shi­b­ley.

So how to fix the prob­lems with the cur­rent struc­ture?

DeVos of­fered a few ideas in her speech, in­clud­ing hav­ing states cre­ate an of­fice equipped to han­dle cam­pus as­sault charges. And she’s con­sult­ing with le­gal groups.

Bos­ton Col­lege pub­lic pol­icy pro­fes­sor R. Shep Mel­nick has re­searched the Ti­tle IX guide­lines en­forced by the Ed­u­ca­tion Depart­ment's Of­fice for Civil Rights and has writ­ten that any new rules must pro­tect due process, as well as free­dom of speech — an­other con­sti­tu­tional right that has taken a hit with the OCR’s overly broad def­i­ni­tion of sex­ual mis­con­duct.

Mel­nick also points out that the OCR has over­stepped its le­gal au­thor­ity when it comes to Ti­tle IX en­force­ment and sex­ual ha­rass­ment.

“OCR’s reg­u­la­tions have re­ceived sus­tained crit­i­cism from a wide ar­ray of schol­ars, pro­fes­sional groups, and civil lib­er­tar­i­ans usu­ally aligned with the Left,” Mel­nick writes.

Sim­i­larly, two le­gal fel­lows at the Her­itage Foun­da­tion made the case the Obama-era pro­ce­dures are so un­fair that they have led to le­gal headaches for uni­ver­si­ties that are now en­tan­gled in law­suits brought by wrongly ac­cused stu­dents.

“Re­vers­ing the ill-ad­vised Obama-era guid­ance is the first step to en­sure that sex­ual as­saults are prop­erly in­ves­ti­gated and ad­ju­di­cated by trained pro­fes­sion­als, leav­ing col­lege ad­min­is­tra­tors, as DeVos said, ‘to fo­cus on what they do best: ed­u­cate,’ ” ob­serve Hans von Spakovsky and El­iz­a­beth Slattery.

The FIRE study of­fered some help­ful safe­guards that DeVos and her team should keep handy as they re­tool the fed­eral di­rec­tive:

Cam­puses should en­sure the pre­sump­tion of in­no­cence; pro­vide clear no­tice of al­leged vi­o­la­tions and suf­fi­cient time for the ac­cused stu­dent to pre­pare a de­fense; use im­par­tial fact-find­ers; of­fer ac­cused stu­dents a mean­ing­ful right to le­gal rep­re­sen­ta­tion; give the ac­cused the right to ap­peal a find­ing; and de­mand una­nim­ity of the dis­ci­plinary panel for ex­pul­sion.

FIRE has helped roll back at­tacks on stu­dents’ free speech rights, and we hope its lat­est ef­fort to re­turn due process to cam­pus is sim­i­larly suc­cess­ful.

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