Speaking at Geroge Mason University, Secretary of Education Betsy DeVos announced Thursday that her department would be reviewing Title IX guidelines on sexual assault. DeVos said she was “grateful” to those who sought to end sexual misconduct on campus but she added, “good intentions alone are not enough.”
“The truth is that the system established by the prior administration has failed too many students,” DeVos said. She continued, “Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved. That’s why we must do better because the current approach isn’t working.”
DeVos spent several minutes highlighting recent cases in which schools have handled Title IX cases poorly. In some of these cases, she suggested an alleged perpetrator escaped justice. In others, the accused was never given a chance to hear the accusations against him. She offered this description of the status quo:
Here is what it looks like. A student says he or she was sexually assaulted by another student on campus. If he or she isn’t urged to keep quiet or discouraged from reporting it to local law enforcement the case goes to a school administrator who will act as the judge and jury. The accused may or may not be told of the allegations before a decision is rendered. If there is a hearing, both the survivor and the accused may or may not be allowed legal representation. Whatever evidence is presented may or may not be shown to all parties. Whatever witnesses, if allowed to be called, may or may not be cross-examined. And Washington dictated that schools must use the lowest standard of proof. And now this campus official, who may or may not have any legal training in adjudicating sexual misconduct, is expected to render a judgment, a judgment the changes the direction of both students’ lives. The right to appeal may or may not be available to either party and no one is permitted to talk about what went on behind closed doors. It’s no wonder so many call these proceedings kangaroo courts.
Later in the speech, DeVos said she would launch a “transparent notice and comment” process to develop a replacement for the current approach. Since the idea was to include ideas from individuals outside of government, DeVos didn’t specify what the replacement system might look like. She did mention one suggestion: Regional centers where Title IX cases would be investigated and adjudicated.
Yesterday I highlighted a lengthy story by the Atlantic which argues that Sec. DeVos is right to reconsider the Obama administration approach to these cases. The piece, by Emily Yoffe, points out that there has already been some pushback on the low standard of proof used to adjudicate these cases:
The preponderance-of-evidence standard demanded by OCR requires schools to make life-altering decisions even when there is great doubt. Penn State, for instance, instructs its adjudicators to find the accused guilty if they deem there is a 50.01 percent likelihood that a violation occurred, adding that this means they “may have considerable reservation” about their decision. Last year, the American Association of University Professors called for universities to be able to return to using the “clear and convincing” standard that many had used previously in Title IX cases. This year, the American College of Trial Lawyers similarly called for the standard of proof in Title IX proceedings to be clear and convincing evidence. Groups of professors at Harvard Law School and the University of Pennsylvania Law School have each released open letters expressing their concern that OCR has undermined due process and justice.
Reason magazine, which has covered this issue extensively, has a post up today offering additional information on some of the specific cases DeVos mentioned today as well as several others she did not mention. Here’s a sample of DeVos speech published by the Associated Press. Video of the full speech is available here.