In my view, the only good thing that the Trump administration has done is to revise the standards American colleges should use to judge sexual misconduct of students. These changes are, I think, fairer to both accused and accuser than were the previous standards proposed by the Obama administration under its Title IX “Dear colleague” letter, which denied reasonable rights to those accused of misconduct. In view of many court challenges to college punishments resulting from the Obama standards, and their palpable unfairness, the changes proposed by Betsy DeVos seem, on balance, good. (Note: this is NOT an endorsement of Betsy DeVos!) I’ve written previously about the mess that Obama’s Title IX guidelines have created in colleges.
The changes proposed by DeVos, which will become final after a two-month period of comment, were reported a week ago in the New York Times. Here’s how they change the picture.
1.) Schools would now be required to hold live hearings and not closed-door adjudications.
2.) The “single-investigator model,” in which one person adjudicates all the evidence and passes judgment, would go out the window. All collected evidence would now have to be presented to a (presumably) objective third party or parties.
3.) Both accusers and accused will be allowed to cross-examine each other through an advisor or a lawyer. However, those who accuse someone of sexual assault or misconduct cannot be directly questioned by the defendant, which seems fair and protective of people’s psyches. They can, however, be questioned by a third party like a lawyer or adviser. This was something that was missing in the Obama regulation, but was recently mandated by a federal court ruling in Michigan.
4.) A “rape shield” protection will remain in place, so that a complainant’s sexual history will remain strictly off limits.
5.) Hearing, like court cases, will be conducted with the presumption of innocence of the accused.
6.) Instead of relying on the “preponderance of evidence” standard mandated by the Obama “suggestions,” schools can use either that standard or the “clear and convincing evidence” standard, which is stricter but still not as strict as the “beyond a reasonable doubt” standard used in courts.
You may recall that the standards, as I explained last year, are these:
- Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
- Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
- Conviction requires a “preponderance of the evidence” for assault or harassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.
7.) The legal responsibility of colleges and universities would change: previously schools would be legally responsible for investigating complaints if they had “actual knowledge” that an assault had happened. Now they have legal responsibility only if a victim files a formal complaint. (If the victim doesn’t, schools are still encouraged to provide “supportive measures.”)
8.) Exculpatory evidence cannot be withheld from the accused. It could previously, which was one of the most unfair parts of the Obama-era guidelines. Further, those accused will be able to review all the evidence against them, which wasn’t previously mandated.
9.) Finally, colleges and universities can investigate conduct only if it occurs in the school’s own premises, programs, or activities, or in a location over which the college or university exercises oversight.
These all seem reasonable to me: they strengthen protections for the accused, which have been notoriously lacking, yet still don’t take them to the level of a legal proceeding in court. Note that when I took a poll of readers about which standard of evidence should be used in adjudicating accusations of sexual misconduct in college, I got this result. Readers wanted the accusations to be first adjudicated in court before the colleges took action, presumably if the person was convicted. (I am not sure I agree with that completely, as some sanctions, like keeping accused and accuser apart, can be imposed only by universities, and should be done before the case goes to court.)
To my surprise, the American Civil Liberties Union (ACLU) has come out strongly against these revisions. I’m surprised because the DeVos standards seem to afford reasonable protections to the accused, something that the ACLU has long fought for in criminal litigation. Now, however, the ACLU sees these changes as “inappropriately favoring the accused”. But not even as much “favoring” as the accused gets in court, so what’s the issue? The issue is that the ACLU is now going against its long-standing policies because social justice demands that the balance be tipped toward the accuser, usually female, in college sexual-assault cases. How else can you understand supporting a policy that doesn’t allow cross-examination of accusers or even the presentation of exculpatory evidence to the accused?
The ACLU first announced its opposition to the policy in some tweets:
We advocate for fair school disciplinary processes that uphold the rights of both parties in campus sexual assault and harassment cases.
Today Secretary DeVos proposed a rule that would tip the scales against those who raise their voices.
We strongly oppose it.
— ACLU (@ACLU) November 16, 2018
It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence.
— ACLU (@ACLU) November 16, 2018
And then put up a post by Emma Roth and Shayna Medley on the ACLU’s website: “Betsy DeVos Wants to Roll Back Civil Rights Protections For Students Filing Complaints of Sexual Harassment or Assault“.
First Amendment lawyer Marc Randazza assesses the situation with snark but accuracy:
— Marc J. Randazza (@marcorandazza) November 20, 2018
In the new Atlantic, editor Conor Friedersdorf summarizes his and other’s take on the ACLU opposition to the new rules (click on screenshot below):
Here’s an excerpt from Friedersdorf’s article, and I agree with it:
. . . the ACLU does not merely argue that “a preponderance of the evidence” standard is superior to a “clear and convincing evidence” standard in campus proceedings in which a state school is punishing a student. In the ACLU’s telling, the more onerous standard is so wrongheaded that rules meant to protect against discrimination on the basis of sex ought to forbid even private colleges that take federal money to adopt such a standard. It even asserts that “there is no reason” for the more onerous standard, as if its adherents aren’t motivated by the same concern that presumably causes the ACLU to favor a still more onerous burden of proof in criminal cases: a desireto prevent the wrongful punishment of innocents.
When someone stands accused of sexual assault in criminal court, does the ACLU believe in the “beyond a reasonable doubt” standard merely because that is what the Constitution requires, or because it is better to leave some guilty people unpunished than to punish many innocents? “The old-school ACLU knew there was no contradiction between defending due process and ‘supporting survivors,’” David French writes. “Indeed, it was through healthy processes that we not only determined whether a person had been victimized, but also prevented the accused from becoming a ‘survivor’ of a profound injustice.” Says the criminal defense attorney Scott Greenfield:
The ACLU cannot love constitutional rights only when it serves to further a cause on behalf of their favored marginalized group, then hate it when it doesn’t, and still be given credit as a voice for civil liberties … Remember, due process “inappropriately favors the accused.”
Those four words are the ACLU’s epitaph.