Dear Betsy: Even students who’ve been accused of sexual assault deserve the chance to defend themselves.
Betsy DeVos is President-elect Donald Trump’s pick for secretary of education. This past week, groups such as End Rape on Campus launched a #DearBetsy social-media campaign urging DeVos to continue the Obama administration’s policies, under which schools across the country have defined sexual assault in expansive terms and scaled back protections for students accused of it.
Meanwhile, the American Association of University Women, among other organizations, has zeroed in on the $10,000 that DeVos gave to the Foundation for Individual Rights in Education, an ACLU-like outfit that, among other things, supports due-process rules.
You might not like DeVos’s financial conflicts or her family’s record on LGBT issues — I don’t — but the #DearBetsy campaign and the controversy over her FIRE donations show how ideological and unmoored the campus rape debate has become.
Let’s be clear: Cases of horrific sexual violence occur in college communities. Last year, Stanford swimmer Brock Turner received a prison sentence, albeit a lenient one, for sexually assaulting an unconscious woman behind a dumpster.
More recently, 10 University of Minnesota football players were suspended after a confidential investigator’s report detailed numerous acts of sexual aggression against a female student and specific evidence of players’ culpability. The rest of the team threatened to boycott a looming bowl game — until the report leaked and they saw what was in it.
In 2011, in an effort to protect women’s right to learn without fear of harassment or discrimination, President Obama’s Department of Education sent out a “Dear Colleague” letter seeking tougher action against sexual violence, while leaving many of the details up to individual schools. In response, well-meaning campus administrators have responded by erasing due-process protections for suspected offenders.
That erosion becomes evident in the public paper trail left by a contentious case at Brandeis. In 2011, the student handbook there gave those accused of serious misconduct the right to be informed of the charges in detail, to confront them at a hearing, and to review “all evidence and reports” presented there. The burden of proof, the handbook said, rested with the accuser.
The next year, the university gutted those protections in sexual misconduct cases. It lowered the standard of evidence that it used to assess guilt, as the government’s “Dear Colleague” letter had specifically demanded.
The university went further. In the 2012 handbook, “there was no requirement that copies of any ‘substantiating materials’ submitted by the accuser, or the names of any witnesses, be shown or provided to the accused any time,” wrote Judge F. Dennis Saylor, who reviewed Brandeis’s procedures in connection with a lawsuit in federal court. Saylor went on, “The accused had no right to confront or cross-examine the accuser, no right to call witnesses, and no right to confront or cross-examine the accuser’s witnesses. The accused had no right to review all the evidence.”
In the context of American legal culture, this is crazy. When corporate polluters get sued, not even the most passionate environmentalist would deny them details of the accusations against them. While violent crime devastates a community, progressives in particular would be aghast at efforts to repeal the Fourth and Fifth Amendments for suspected armed robbers.
Campus disciplinary proceedings aren’t court cases, but the underlying principle is the same: Standard rules of evidence and other protections for the accused keep things like false accusations or mistakes by authorities from hurting innocent people.
Instead, tales of murky, Kafkaesque proceedings have proliferated.
In the Brandeis case, a student identified as “John Doe” had sued Brandeis in federal court after being deemed guilty of sexual misconduct. (Saylor made a significant initial procedural ruling in Doe’s favor, though the suit was ultimately withdrawn.) His ex-boyfriend, “J.C.,” had filed a complaint against him more than six months after the end of a 21-month relationship.
A special examiner prepared a report, which, according to Saylor’s summary, wasn’t provided to Doe at any point in the investigation. Brandeis found him responsible for supposed misdeeds such as kissing J.C. while he was asleep, looking at his private areas when they showered together, and, at one point, sought to initiate a sexual act without formally asking permission. In other words, Doe behaved like normal, nonpredatory adults sometimes do when they’re dating.
The examiner treated their relationship as irrelevant. Instead of just dismissing a patently flimsy sexual-assault complaint, Brandeis seemed to split the difference: It held John Doe responsible for some minor sexual infractions but stopped short of expelling him.
Then the outrage-amplification machine kicked in. “Brandeis University Punishes Sexual Assault With Sensitivity Training,” a Huffington Post headline declared, after J.C. publicly decried John Doe’s penalty as overly lax. The case was one of two mentioned on the influential liberal website ThinkProgress in a piece entitled “Universities Keep Failing To Actually Punish Rapists.”
In an information vacuum, all sexual assault cases look the same. As Harvard Law School professors Jacob Gersen and Jeannie Suk Gersen declared in the Chronicle of Higher Education earlier this month, “In essence, the federal government has created a sex bureaucracy that has in turn conscripted officials at colleges as bureaucrats of desire, responsible for defining healthy, permissible sex and disciplining deviations from those supposed norms.”
Any backtracking by Trump’s administration will be greeted by suspicion at liberal colleges.
Yet those of us who generally believe in governmental activism, and think public and private schools alike should look after their students to the best of their abilities, should also recognize the limits of a university’s omniscience.
In the Stanford and Minnesota cases, the involvement of local law enforcement was crucial in establishing facts — and the gravity of the situation. Far more often, universities handle accusations of sexual assault on their own, in opaque proceedings that take the place of criminal investigations, rather than complementing them.
On their own, schools have never done this job well. While the Minnesota investigator did thorough work, most schools lack expertise in collecting evidence and evaluating witnesses. To avoid adverse publicity, schools have an incentive to keep all proceedings quiet, which means it’s impossible to tell from the outside whether they’re adjudicating cases fairly.
When students like John Doe are labeled as sexual assailants, while many victims of serious crimes still feel ignored, the problem is that colleges and universities are being pushed to do a job they’re not cut out to do. Sexual violence is a crime. Federal policy should press students and schools to involve law enforcement in every case. It shouldn’t just make harried college bureaucracies take on more investigations — only with ever more draconian rules.