Secretary of Education Betsy DeVos deserves high marks for reviewing – and hopefully overturning – Obama-era policies governing campus sexual assaults. This is an important step to strengthen the pursuit of justice for victims and to restore constitutional rights of due process to the accused.
It’s commendable that the Department of Education wants to combat sexual misconduct on campuses. Victims of assault deserve every right to see their cases treated seriously and fairly.
However, false allegations damage real victims of assault by breeding skepticism of all allegations. High-profile campus rape cases that fell apart under scrutiny, such as at the University of Virginia chronicled by Rolling Stone or the lacrosse team at Duke University, also remind us that rights of the accused cannot be neglected.
In 2011, the Obama administration issued guidance to colleges and universities on how to deal with campus sexual assaults. But it created harmful unintended consequences. The Department of Education expanded enforcement of the federal Title IX anti-sexual discrimination law beyond the basic guarantee of equal rights in school settings to include investigating and making decisions about allegations of sexual harassment and assault.
Although schools are not best suited to investigate and punish felonious acts such as sexual assault, academia was roped into the world of criminal justice The accused now face a system stacked against them.
The most contentious recommendation lowered the standard of proof from “clear and convincing” to a “preponderance of evidence,” which some, but not all, campuses previously applied. This makes it easier for college officials to find a student guilty – even if it is only 50 percent likely that he or she committed the act.
The presumption that a defendant is innocent until proven guilty is one of the most fundamental principles of our American justice system, but not our higher education system. The Foundation for Individual Rights in Education (FIRE) found in a recent report that 74 percent of America’s top 53 universities do not guarantee students that they will be presumed innocent until proven guilty. Furthermore, only 47 percent of these institutions require that their fact finders (i.e., judge and/or jury) be impartial.
The Obama education department also expanded the definition of sexual harassment on college campuses to include verbal behavior found to be “unwelcome” – a vague definition that pulls in many actions which would not fit the legal definition of assault. A University of Michigan poll, for example, found that 22.5 percent – nearly one out of four – of undergraduate women were sexually assaulted. However, that definition included “nonconsensual sexual behavior” such as kissing.
No one should be forced to do anything against his or her will, but it’s disingenuous to equate criminal and noncriminal behaviors in a ploy to inflate the numbers of victims of sexual assault. This distorts the reality of the problem of campus sexual assault and provides legitimacy to policies that are ill-conceived and harmful to both complainants and the accused.
The American College of Trial Lawyers noted in a report about campus sexual assault investigations: “Under the current system everyone loses: accused students are deprived of their fundamental fairness, complainants’ experiences are unintentionally eroded and undermined, and colleges and universities are trapped between the two, while facing a potential loss of federal funding.”
The new policies created a conflict of interest for administrators. If universities don't comply with the new rules when investigating assault cases, they risk losing federal funding. Instead of pursuing truth, they pursue process and the rights of students become collateral damage.
Finally, allowing a complainant to appeal the outcome of a school investigation – even though the accused student has been cleared of wrongdoing – has become unproductive and unfair. Our judicial system protects the accused from being forced to defend themselves repeatedly. Because of these rules, students would find themselves facing double jeopardy if a complainant is not satisfied with the outcome of a case.
In fighting for young men and women who suffer sexual harassment and assault, Washington should not create a new class of victims: the accused. People who are falsely accused are left to deal with the aftermath – clearing their name, reclaiming their reputation and facing challenging future prospects.
DeVos is right to review these rules to ensure that every student enjoys the protections he or she should be afforded in the pursuit of education.
Patrice Onwuka is a senior policy analyst at Independent Women's Forum and regular guest on Fox News Channel and Fox Business Network.