Education Secretary Betsy DeVos ignited a polarizing debate with her Sept. 7 speech explaining plans to repeal the Obama-era Title IX campus sexual misconduct guidelines. The Obama administration’s 2011 “Dear Colleague” letter addressed the problem of sexual assault on college campuses by offering guidelines for handling cases and threatening to withhold federal funds if universities failed to comply. These “suggestions” acted in practice as closely monitored rules as universities updated policies to avoid Title IX conflicts and potential punishments.
The "Dear Colleague" letter encouraged campuses to lower the burden of proof in sexual assault cases to a “preponderance of evidence” (more than 50 percent of evidence incriminating the accused), to end the cross examination of accusers, and to allow accusers to appeal not-guilty charges. In her speech, DeVos emphasized her plan to update guidelines with a focus on restoring trial justice on campuses and protecting the civil rights of the accused.
Last semester, I wrote an opinion article addressing the issue of sexual misconduct trials on our own campus. I identified the failure of Princeton’s current system to adequately protect the rights of the accused and suggested updating the procedures to address this flaw. I argued for the return of student juries to the trials in order to provide greater understanding of campus rape culture and to add perspective to cases, going beyond the victim’s word against that of the accused. I support DeVos’ plans to revise sexual misconduct guidelines and her emphasis on protecting the rights of the accused. I agree that the updating of the “preponderance of the evidence” burden of proof will appropriate trial justice for the accused.
Ensuring a fair trial embodies America’s founding ideals and works to protect students’ civil rights by avoiding bias in trials in either direction. I argued in the spring that a fair trial procedure is the best way to take assault seriously on campus, and DeVos’ agenda champions this perspective. DeVos defended that “one rape is too many,” but one person denied due process is too many as well.
Although I am not alone in applauding DeVos’ efforts to remedy the flawed trial system, many — including outspoken critic Senator Kirsten Gillibrand — have condemned the administration for diminishing protections for victims. As DeVos’ agenda is constantly tainted by Donald Trump’s own actions and marred reputation for handling and discussing assault, many accuse the administration of not taking sexual assault seriously. Despite her intention to consult diverse resources to craft appropriate policy, Devos' pro-civil rights rhetoric is often perceived as skewed towards protecting the accused, as it lives in the shadow of Trump’s history and language regarding the subject.
DeVos’ proposals also draw into question whether university campuses should handle sexual misconduct cases at all. Critics argue that assault cases are better handled by criminal justice courts. In the spring I argued that campuses are better prepared to handle these cases than government courts because of the specific knowledge and understanding of particular campus culture. I maintain that campus courts have advantages in best understanding cases, but only if these procedures vow to protect a just trial and due process.
The Foundation for Individual Rights in Education (FIRE), in their “Spotlight on Due Process 2017,” also questions whether these cases should be handled by criminal courts, and it emphasizes universities’ current failure to “provide even the most basic procedural protections that should accompany accusations of serious wrongdoing.” The organization conducted an investigation and evaluated the top 53 U.S. News & World Report-ranked universities’ misconduct trial procedures, based on principles of fairness and due process. The report finds that 74 percent of evaluated universities do not guarantee students the right to be considered innocent until proven guilty, an essential American safeguard and fundamental citizen’s right.
With regard to assumption of innocence, Princeton’s policy was rated by FIRE in between “absent” and “enunciated” for both types of misconduct cases. Our administration uses the preponderance of evidence standard, and this should be updated to adequately protect trial rights. But, according to the report, in sexual assault cases specifically, Princeton failed in three essential areas: access to evidence, right to counsel, and cross examination. Without these fundamental safeguards, Princeton fails to protect its students.
FIRE “Spotlight on Due Process 2017” Rating Symbols
In an article in the Harvard Crimson, the Crimson Editorial Board responded to DeVos’ announcement about Title IX by asking the Harvard students and administration to “combat the narrative of DeVos’ decision — automatically doubting survivors’ allegations of sexual assault” and “to take decisive action to protect the safety and rights of its students.” Prioritizing education of students about sexual assault and protecting them from sexual misconduct is important, but this shouldn’t undermine a fair and unbiased trial system for the accused.
Duke University has meanwhile formed a task force to investigate sexual misconduct procedures that recommends reworking the school's “preponderance of evidence” standard. The task force also suggests measures to ensure specificity of cases, rather than generalized procedures and punishments for misconduct cases. In this way, Duke is concurrently protecting trial rights and protecting students from sexual assault. It doesn’t have to be either/or.
Critics of DeVos question, if college campuses should manage sexual misconduct cases at all, whether criminal trial protections are required for university campuses. The Washington Post emphasizes lower responsibilities for university trials by claiming DeVos’ proposal “confuses a school’s obligation to protect the civil rights of its students under Title IX with a defendant’s rights in the criminal-justice system.” While a University is able to limit students’ civil liberties on campus, a commitment to fairness in trial is essential to protecting students. Specific procedures may be more negotiable than in criminal courts, but students’ access to fundamental rights and fairness are not.
Critics also condemn Devos' policy changes for failing to take assault seriously and for abandoning the plight of victims in favor of protecting the accused. For example, the Post criticizes a “false equivalence between the experience of a student reporting a sexual assault and that of the student accused of the assault.” As I argued in my previous article, the most effective and consistent way of protecting all students is ensuring fairness in every aspect of misconduct trials. My sentiment, as a New York Times columnist put it, is that “due process for students accused of assault is not a fringe or right-wing issue.”
Jessica Nyquist is a junior in Computer Science from Houston, Tex. She can be reached at firstname.lastname@example.org.