Aug 08, 2020
United States Secretary of Education Betsy DeVos (Gage Skidmore/Flickr)

Betsy DeVos is changing how we handle sexual misconduct

United States Secretary of Education Betsy DeVos is challenging college students across the country to debate how the law and universities should handle allegations of sexual misconduct ranging from harassment to rape.

The Secretary’s call to action is the latest chapter in a complex and long-running controversy revolving around the scope of legal rights for accuser and accused.

Systems of justice vary across the nation’s college campuses. But the fight can be divided into sides.

One side says the victims of sexual misconduct who seek justice from university administrations are often victimized again by a process that is indifferent if not hostile to their suffering.

The other side says university administrations, desperate to comply with federal requirements, too often violate the constitutional protections accorded anyone accused of a misdeed or crime.

America is a big nation. And there are hundreds of college campuses serving millions of students. And perhaps due to that, sexual misconduct has become a serious issue in higher education.

Students punished by universities for sexual misconduct have successfully sued in court, saying the schools violated their rights to a fair hearing.

In a recent speech at George Mason University, DeVos said her department wants to help schools do a better job of dispensing justice when someone on campus formally alleges he or she has been victimized.

“Our interest is in exploring all alternatives that would help schools meet their Title IX obligations and protect all students,” De Vos said. “We welcome input and look forward to hearing more ideas.”

California State University Chancellor Timothy P. White, in a written statement issued to the general public said the CSU system will keep a sharp eye on the Education Department’s Office for Civil Rights, (OCR).

“As we wait for OCR’s process to unfold, I assure you CSU’s existing policies will continue to protect our students and employees, and provide fairness to all,” White said. “Our comprehensive policies comply with federal and state laws and regulations – and remain in full force and effect.”

White said compassion and fairness to all parties is the foundation of CSU sexual misconduct policies.

“At the same time, the CSU continually reviews its policies to ensure that processes are informed by lessons learned through experience and the wisdom of experts and community stakeholders,” White said.

The administration of Fresno State President Dr. Joseph Castro has shown signs that it is ready to hear from students.

“In Chancellor White’s remarks regarding Secretary DeVos’ encouragement for debate, he stated that the CSU will be strong participants in that process to ensure our values are represented at the table,” said Deborah Adishian-Astone, vice president for administrative services, in a written statement to The Collegian. “The chancellor’s office has a strong team of dedicated staff that serves all 23 campuses, and they will be taking the lead in these discussions.”

“We encourage any student who may have feedback to contact the Title IX coordinator. Our Title IX coordinator will convey any concerns from our campus community to the Chancellor’s Office team to ensure our voices are heard.”

Two pillars of America’s legal system play a pivotal role in the debate of sexual misconduct.

The first is Title IX, a 1972 federal law that prohibits discrimination on the basis of sex in any education program receiving federal help.

The second is “due process,” the principle that formal legal proceedings must be conducted with established rules so that a person is not subjected to arbitrary treatment. The Fifth and Fourteenth amendments to the U.S. Constitution contain due-process clauses.

The starting point for the controversy was the April 4, 2011, letter from Russlynn Ali, then-assistant secretary for civil rights in the Department of Education, to educators throughout the nation.

The 19-page policy document has become known as the “Dear Colleague” letter, referring to Ali’s salutation.

Ali explained how the federal government planned to interpret Title IX as far as protecting students from sexual harassment/sexual violence.

The schools were told they could lose federal funding if they didn’t follow the new Title IX guidelines. This was a serious warning. After all, federal money is vital to most schools.

Ali wrote that Title IX is a Civil Rights law that, among other things, protects students from sexual harassment. A student sexually harassing another student “creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s programs.”

So, schools must “take immediate action to eliminate the harassment, prevent its recurrence, and address its effects,” Ali wrote.

The university must have a Title IX-complaint process in place for taking such action. Here is the source of much of the national controversy.

The process created by a university to address a sexual harassment/sexual assault complaint “must meet the Title IX requirement of affording a complainant a prompt and equitable resolution,” Ali wrote.

But just what is the definition of an “equitable” resolution when one person accuses another person of sexual harassment/assault? The nation’s court system has certain standards of evidence to help answer that question.

But Ali wasn’t writing about finding an answer within the court system. She wrote about finding an answer within a university’s internal system of justice.

“In order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e. it is more likely than not that sexual harassment or violence occurred). The ‘clear and ‘convincing’ standard (i.e. it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence,” she wrote.

The parenthetical comments are part of Ali’s letter.

Ali told universities receiving federal funds that the standard of proof that an alleged violation/crime occurred would be a lower bar to clear.

DeVos in September told an audience at George Mason University of her intent to reform the Title IX guidelines contained in Ali’s “Dear Colleague” letter.

“Let me be clear at the outset: acts of sexual misconduct are reprehensible, disgusting and unacceptable,” DeVos said. “They are acts of cowardice and personal weakness, often thinly disguised as strength and power…. Every person on every campus across our nation should conduct themselves with self-respect and respect for others.”

DeVos introduced the “due process” issue. In her speech, she said one rape is one too many, one assault is one too many, one aggressive act of harassment is one too many and one person denied due process is one too many. She added that the discussion of how to handle sexual misconduct must include all sides.

“There is no way to avoid the devastating reality of campus misconduct: lives have been lost,” DeVos said. “Lives of victims. And lives of the accused.”

DeVos said she has discussed this issue with educators and students across America. She said the system established by the previous administration “failed too many students.”

DeVos added that her department will reform the 6-year-old Title IX guidelines.

“In order to ensure that America’s schools employ clear, equitable, just and fair procedures that inspire trust and confidence,” she said. “We will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way.”

In the wake of DeVos’ speech, the Department of Education issued its own “Dear Colleague” letter. It served as a formal withdrawal of Ali’s letter as the prevailing statement of policy.

DeVos has also issued a seven-page Q&A advisory titled “Schools’ Responsibility to Address Sexual Misconduct.”

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