DeVos on right track with guide­line changes

The Oklahoman - - OPINION -

AS U.S. Ed­u­ca­tion Sec­re­tary Betsy DeVos an­nounced last week that needed changes were com­ing to Ti­tle IX rules re­gard­ing schools’ han­dling of sex­ual as­sault cases, protesters out­side the hall at Ge­orge Ma­son Univer­sity held signs that said such things as “Jus­tice for sur­vivors” and “Sex­ual as­sault on cam­pus is no joke.”

Yet DeVos feels the same way, and made that clear in her re­marks.

“One rape is one too many, one as­sault is one too many, one ag­gres­sive act of ha­rass­ment is one too many,” she said. And, DeVos added, “one per­son de­nied due process is one too many.”

That last point is cen­tral to her plan to roll back the Obama-era guide­lines. The prac­tices em­ployed by col­leges and uni­ver­si­ties in sex­ual as­sault cases, which stemmed from “Dear Col­league” let­ters sent in 2010 and 2011 by the Department of Ed­u­ca­tion’s Of­fice for Civil Rights, too fre­quently harmed those ac­cused of mis­con­duct.

Ti­tle IX bans dis­crim­i­na­tion based on gen­der for schools and pro­grams that re­ceive fed­eral fund­ing. Un­der the OCR guide­lines, as­sault cases were heard by univer­sity ad­min­is­tra­tors or pan­els. Uni­ver­si­ties were told by the OCR to use a pre­pon­der­ance of the ev­i­dence, in­stead of “be­yond a rea­son­able doubt,” as the thresh­old to de­ter­mine whether some­one had com­mit­ted sex­ual as­sault.

The OCR dis­cour­aged cross-ex­am­i­na­tion of those fil­ing com­plaints, the ac­cused of­ten faced the allegations with­out ben­e­fit of coun­sel, and OCR re­quired cam­puses to al­low com­plainants to ap­peal de­ci­sions. Those found guilty could be ex­pelled, and of­ten were.

Prob­lems with this ap­proach were ev­i­dent from the start. The Foun­da­tion for In­di­vid­ual Rights in Ed­u­ca­tion says at least 170 stu­dents who were ac­cused of wrong­do­ing have brought le­gal chal­lenges against their uni­ver­si­ties.

Among those crit­i­cal of the OCR’s di­rec­tives were 28 Har­vard Law pro­fes­sors, who said they lacked “the most ba­sic el­e­ments of fair­ness and due process” and were “over­whelm­ingly stacked against the ac­cused.” Last year, 21 law pro­fes­sors from uni­ver­si­ties across the coun­try wrote an open let­ter to the Department of Ed­u­ca­tion to ex­press their con­cerns. While ap­plaud­ing the OCR’s in­tent, they said the of­fice had “un­law­fully ex­panded the na­ture and scope of in­sti­tu­tions’ re­spon­si­bil­ity to ad­dress sex­ual ha­rass­ment, thereby com­pelling in­sti­tu­tions to choose be­tween fun­da­men­tal fair­ness for stu­dents and their con­tin­ued ac­cep­tance of fed­eral fund­ing.”

DeVos was crit­i­cized by left-lean­ing groups for even meet­ing this sum­mer with stu­dents who said they had been wrongly con­victed of Ti­tle IX vi­o­la­tions. Her de­ci­sion to change course drew more crit­i­cism. For­mer Vice Pres­i­dent Joe Bi­den declared that “any change that weak­ens Ti­tle IX pro­tec­tions will be dev­as­tat­ing.” The head of “End Rape on Cam­pus,” mean­time, said her group “will not ac­cept this bla­tant fa­voritism for the rights of rapists un­der the guise of fair­ness.”

Yet un­der the pre­vi­ous guide­lines, a rapist could be kicked out of school but faced no le­gal reper­cus­sions. How sen­si­ble is that?

With this re­set, DeVos is sim­ply seek­ing to bring bal­ance to the sys­tem by pro­tect­ing vic­tims of sex­ual as­sault and the con­sti­tu­tional due-process rights of the ac­cused. Par­ents with sons or daugh­ters in col­lege should wel­come the change.

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