The new federal rules on how colleges must treat allegations of sexual assault are about to come out, and judging from advance reports, U.S. Education Secretary Betsy DeVos brought some much-needed sanity to parts of the procedure.
But unfortunately, after setting up some better definitions of fairness, she wrecked it by introducing rules that would allow some flagrantly unacceptable behavior to get a pass.
The situation on campuses had reached an unacceptable state when the Obama administration set out to change it in 2006.
Colleges and universities were going to great lengths to avoid reporting rape and other sexual attacks. Young women were actively discouraged from filing formal complaints. When they did, their cases seldom went forward. They were routinely disbelieved.
As with so many situations that need a severe course correction, the pendulum swung wildly in the other direction. College employees were required to report any allegations they’d heard, even if the alleged victim hadn’t reported it, denied being a victim or even objected to any report being made. They were responsible for knowing, somehow, about sexual assaults without anyone actually complaining.
Men - most of the accused are men - were getting into trouble for sexual encounters that had seemed consensual at the beginning, until the woman later decided she had not been comfortable. When both parties were drunk, it was assumed that the person who later felt taken advantage of had in fact been victimized. Many students were accused months, and in some cases even years, after the case.
The Obama guidelines in 2011 discouraged colleges from putting sexual assault cases through the process of discovery or giving accused students the right to cross-examine their accusers, and didn’t allow for mediation even if the accuser wanted that. It insisted that the standard of proof to find a student guilty must be preponderance of the evidence, meaning just barely past 50-50.
It’s true that these aren’t criminal proceedings, so proof beyond a reasonable doubt isn’t necessary. But the midpoint - “clear and convincing evidence” - would be fairer. Before they wreck a student’s future, college administrators should be pretty damn sure.
The letter to colleges from the Obama administration had the effect of encouraging schools to go even further in their investigations of students than the Education Department asked. No one wanted to take a chance of getting in trouble with the federal government. Men could even be disciplined for sexual encounters that hadn’t taken place during the school year, anywhere near campus, or with a student who didn’t attend the school.
The new rules proposed by DeVos, as reported by the New York Times, take a prudent and common-sense route by no longer requiring colleges to be all-knowing about possible cases of sexual misconduct. It would be their job to investigate when a formal complaint was filed by the actual accuser. They would have the option of using the “clear and convincing evidence” standard if they chose - and more of them should. The new rules would allow for mediation when both parties want it.
Students would have the right to directly cross-examine their accusers, a necessary part of due process. But there’s where the new rules would start making things too hard on alleged victims. Many of them have been through trauma; exposing them to questions posed directly by the accused student adds to their emotional turmoil. And it’s completely unnecessary.
That’s just the start. Some of the new rules would be as unacceptable as the Obama-era guidelines. This is, after all, an administration that has shown its blatant lack of regard for women’s rights. The old rules allowed action against students whose alleged misbehavior had nothing to do with their lives as college students, but the new rules reportedly would define sexual assault as occurring only on campus or during a school event.
Yet many of the problems occur at frat-house parties just off campus and at other off-campus housing. These are legitimately college-related. When colleges lack enough dorm space for all students, does that mean students pushed to live off-campus are fair game for sexual assault?
The rules also would define sexual assault far too narrowly, as misbehavior so outrageous that it prevents the victim from access to education. Under such a definition, a student could roam campus repeatedly touching others inappropriately with no fear of discipline.
A reasonable, common-sense course lies in the middle of all this, but we haven’t reached it. Still, there’s a chance to make the rules both fair and effective. They could be changed before they’re published. Even then, there’s a 30-day comment period before they’re finalized.
It’s not that hard. Colleges should need clear and convincing evidence before they can suspend or expel a student; both accused and accuser should be able to question each other, but through a third, independent party. The definitions of sexual misbehavior should include actions having to do with the college or its students, during the school year, but not necessarily on campus. DeVos has a chance to do this the fair way, not the political way.
Karin Klein is a freelance journalist in Orange County who has covered education, science and food policy.