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
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.