The idea that American universities have “gone too far to the other extreme” in policing sexual assault on campus has quickly become conventional wisdom. In a sense, it’s a comforting thought, implying as it does that we’ve responded all too well to the problem. We’ve overcorrected, in this view, and simply need to move “back to the middle.”
But that frame, which Education Secretary Betsy DeVos made the official position of the Trump administration this week, reflects a complete misreading of both the situation on campus and of current protections.
Where the rights of the accused have been violated — and of course, that has happened — that’s not the result of the pendulum swinging too far, of schools overreacting or of the government overreaching.
Instead, it’s evidence of the same old problem of not taking sexual assault seriously enough to fully and aggressively investigate every case without assuming anything or protecting anyone, following the facts wherever they lead and then responding accordingly.
Texts, iPhone video and social media postings from survivors, witnesses and the accused give investigators so much more real-time information than ever before that we should long since have retired the lazy “he said, she said, and who can know?” assumption that these cases are just too complicated to figure out. (Do we say that about murder — that no one else was there, so oh well?)
And if the existing guidance were followed correctly, the rights of both survivors and accused would be respected.
In 2011, the Obama administration reiterated protections that had theoretically existed since Title IX banned sex discrimination in education in 1972. The big change, nearly 40 years later, was that the civil rights office of the Education Department promised to start investigating how schools handle sexual assault reports.
Of the 360 open cases currently under federal investigation by that office, five are at Kansas State University, two at the University of Kansas, and one each at Washburn University, William Jewell College and Missouri University of Science & Technology.
What do those and other schools stand to lose? Well, the 2011 letter warned that universities that did not correctly handle sexual assault allegations could lose federal funding. But that’s never happened, and came over time to be seen as an idle death threat, since even a private school deprived of all federal funding couldn’t survive.
The guidance did not change the recommended standard of proof used in campus disciplinary hearings, either, as is widely believed. It said that schools should start using the previously recommended but mostly ignored lower standard of “preponderance of the evidence” — more likely responsible than not — in school disciplinary hearings instead of the higher burden of “clear and convincing” evidence of responsibility for an assault.
In a speech at George Mason University in Virginia on Thursday, DeVos said her team will rewrite those onerous and unfair Obama-era rules: “Through intimidation and coercion, the failed system has clearly pushed schools to overreach. With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.”
In her emphasis on the accused, she suggests that there’s parity between the relative handful of accused men who are ever disciplined at all and the many horror stories reported by the one in four women who say they were sexually assaulted during college. (And if you doubt that number could possibly be right, ask any four women who are in college now or were on campus 10, 20 or 30 years ago.)
No, the problem isn’t new, but talking about it is, and that’s progress in itself. Sen. Claire McCaskill of Missouri was among the many who pushed back after DeVos spoke, tweeting, “I’ll fight with everything I’ve got to #StopBetsy from washing away all the progress we’ve made protecting survivors & making campuses safe.”
Arne Duncan, an education secretary under Obama, said his current successor “wants to take us back to the days when colleges swept sexual assault under the rug.” But unfortunately, we don’t have so far to go to get “back” to that time, because that’s what many schools never stopped doing.
In fact, the one positive we heard from DeVos was her reference to reports of sexual assaults on campus perhaps being handled by “regional centers” that would bring in law enforcement and attorneys general to work with school officials, who in our view too often still protect the reputation of their institutions over the welfare of their students. Though they can hardly be left out of decisions about who stays on campus and who goes, that would be even better.