Tuesday, July 18, 2017
Last week, Education Secretary Betsy DeVos, met with selected groups to hear from stakeholders on Title IX processes when sexual assault is alleged. First she met with those who feel Title IX discriminates against males who are accused. The following day she met with survivor advocates who want the current state of hearings to continue. The controversy revolves around the "Dear Colleague" letter sent in 2011 to colleges and universities outlining a list of standards to be employed, and in some cases, aspired to, when universities deal with sexual assault complaints. Among other things, the letter instructed campuses to use the "preponderance of the evidence" language when deciding whether or not the accused student is responsible for the alleged behavior.
The letter gave other instructions, however, use of the lower standard of proof is the one most challenged by those who advocate for the accused. Criminal lawyers often demand that the "beyond a reasonable doubt" standard should be used at Title IX hearings. Title IX hearings are civil in nature and can have different goals than either the civil or criminal justice systems. The safety of the complaining students as well as the community, is paramount, as is education of the student found responsible in an attempt to avoid future troubling behavior. The process views itself as more remedial than punitive.
There is no doubt that some results of Title IX hearings are bewildering, and others have denied basic due process rights for the responding student. Those deficiencies must be corrected. But the problem is not the standard of proof. Nor is the answer to turn a quasi-civil proceeding into a criminal one. The answer to those deficiencies is to enforce training standards and have access to an effective appeals system. To raise the standard of proof to the criminal one is to revert to a system where the complaining student will rarely succeed.
So what do we expect from Secretary DeVos? We know that the Obama administration's guidance on transgender students was withdrawn. We know that DeVos initially opposed withdrawal of the regulation but ultimately ceded to Attorney General Sessions. We have a president who admits to sexually assaulting women. We cannot expect an objective assessment of what a fair Title IX decision making process would look like.
We can expect additional barriers to successful Title IX claims. Whether that will be accomplished through raising the standard of proof, creating a new one, or some other change, we can expect diminished rights for complaining witnesses. After all, before the ink was dry on his presidential appointment to head an education task force, Chairman Falwell announced that one target of his work will be to limit the federal government's reach into higher education's handling of Title IX obligations.
Secretary DeVos deserves credit for her defense of transgender policies and for any empathy she might have for survivors of campus assault. The predominant criticism of her is that she does not fundamentally understand Title IX. But no matter, the boys are in charge.