On Friday, Education Secretary Betsy DeVos changed how universities will handle sexual assault on campus.
The Department of Education rescinded Obama administration guidelines and announced a formal review of school sexual assault policies. In the meantime, schools are expected to use a new Q&A document to make decisions about ongoing cases.
The new rules still require schools to investigate sexual assault but make it more difficult to find accused students responsible.
Why is it important?
In 2011, the Department of Education under the Obama administration published a now-famous 'Dear Colleague' letter. The letter required schools to investigate sexual misconduct and outlined how to do it.
There are two key parts of this conversation: first, the idea that schools should be responsible for dealing with sexual assault to begin with and second, the standard of evidence they should use if they do adjudicate these cases. The first is our debate.
For the second, the Obama and Trump administrations set different standards of evidence. "Preponderance of evidence" is the standard established by the Obama administration and used in civil court cases. Here, the university must find the student responsible if it is more likely than not he or she is guilty. "Clear and convincing evidence" is the standard proposed by DeVos and the Trump administration. Now, the university must find a student responsible only if it is "highly probable" he or she is guilty. ("Beyond a reasonable doubt" is the highest standard and the most familiar, but it is used in criminal court cases, not in universities.)
Should universities adjudicate sexual assault cases?
By requiring universities to adjudicate sexual assault cases themselves, we force them to create lesser courts that by design do not live up to the expectations and requirements we have for our courts of law. The process is inherently unsound and as a result is a disservice to both survivors of sexual assault and students accused of it.
Schools should be responsible for preventing sexual assault. Police and courts should be responsible for investigating and adjudicating it. This would not prevent a school from moving a student into a new dorm room; schools could take many steps to be helpful during a court case. But it would prevent an error-prone system from expelling an innocent person and crushing his or her earning capacity.
When Harvard instituted rules in line with federal guidelines, a group of Harvard law professors wrote a scathing letter about the university's policies. "We find the new sexual harassment policy inconsistent with many of the most basic principles we teach... Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process."
The law professors were right about the rules, but of course the school implemented them. It had to.
Slate writer Dahlia Lithwick asked, "how is it possible that a crime as serious as an aggravated, premeditated gang rape can be funneled into an internal disciplinary process? How can a felony offense be kept out of the police’s hands, and how can victims be presented with a menu of choices that includes, and even encourages, doing nothing?"
Because we make schools do it. We shouldn't. This is a serious and widespread crime. One in five women and one in 71 men will be raped at some point in their lives. At universities, those numbers are worse not better: one in 5 women and one in 16 men are sexually assaulted while in college. We don't put simple assault through an internal system, we report it to the policy. Why are we creating a separate internal system for sexual assault, as though it were a lesser crime?
In 1976, Yale undergraduate Pamela Price refused her professor's sexual advances. She sued the school, claiming he threatened to lower her grade from an A to a C—but at the time, there was no clear legal requirement for schools to address sexual assault. Price's suit, which grew to include four other women, had a novel premise: sexual misconduct was a form of gender discrimination already prohibited by federal law.
That idea is as true and as critical to education today as it was in 1976.
The idea in Price's case, Alexander v. Yale, was simple: It is harder to learn when you are being sexually harassed or assaulted and 91% of the victims of rape and sexual assault are female. In other words, this problem disproportionately affects women's ability to receive their education. Therefore, a school that does not address this problem is violating federal law under Title IX, which says:
"No person in the United States shall, on the basis of gender, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance."
Price's case was dismissed for technical reasons in 1980, but it confirmed the idea that federal law requires schools to deal with sexual assault. Most universities began to create grievance procedures after the Alexander v. Yale. And today, we have related protections under the Violence Against Women Act and the Clery Act.
Schools must have a predictable and efficient way of doing things courts can't do to protect students and ensure they can get the education they are there to receive. For example, a school needs a system for moving a potential victim from dorm rooms next to a potential attacker, even though there may not be enough evidence to find the accused guilty in a court of law. Those kinds of actions don't require legal certainty. But they are absolutely crucial to ensuring men and women get an education unhindered by sexual assault. It's required by Title IX and the Violence Against Women Act—but also by simple morality.
- Vox's explainer on Betsy DeVos' new policies
- "The interim guide also allows schools to deny survivors the ability to appeal, and lifts the time limit for completing an investigation. Without a time limit, investigations might drag on for years, as they sometimes did before the 2011 guidelines were in place, Peterson said. In some cases, she said, survivors dropped out of school because their investigations went on for so long."
- The Trump Administration's Q&A
- "When sexual misconduct is so severe, persistent, or pervasive as to deny or limit a student’s ability to participate in or benefit from the school’s programs or activities, a hostile environment exists and the school must respond."
- The Obama Administration's 'Dear Colleague' letter
- "As you know, OCR enforces several statutes that prohibit discrimination on the basis of sex, race or other prohibited classifications in federally funded educational programs and activities. These prohibitions include racial, disability and sexual harassment of students. Let me emphasize that OCR is committed to the full, fair and effective enforcement of these statutes consistent with the requirements of the First Amendment. Only by eliminating these forms of discrimination can we fully ensure that every student receives an equal opportunity to achieve academic excellence.