Marcus: Campuses need fairer system for policing sexual assaults

Betsy DeVos’ legacy on the issue may end up being positive.
Betsy DeVos’ legacy on the issue may end up being positive.
Published Sept. 12, 2017


There is no reason to trust the Trump administration and Education Secretary Betsy DeVos when it comes to policing sexual assault on college campuses. Actually, make that stronger: There is every reason not to trust.

Not only because of the president's own words and behavior, but because of the dismissive comments of the department's top civil rights official, Candice Jackson, about campus sexual assault claims — that "the accusations — 90 percent of them — fall into the category of 'we were both drunk,' 'we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.' " Jackson may have apologized; there is no erasing the underlying attitude.

And yet, it is also true that the current regime under which campus sexual assault allegations are investigated and adjudicated is seriously flawed. Before the Obama administration instructed colleges and universities that they had to take sexual-assault allegations seriously — or risk losing federal funds — the system was way too disposed to discourage complaints. But the Obama administration's move also prompted an overcorrection at some institutions that failed to do enough to protect the rights of students accused of wrongdoing.

Which is how I find myself in the unexpected position of writing not to lambaste DeVos but to praise her, albeit tentatively and preliminarily, for announcing plans to rework the department's approach to Title IX, the federal law prohibiting gender discrimination at educational institutions.

An assault, especially an assault left unpunished, can ruin a student's life. A finding of liability can ruin a life as well, with a student potentially expelled and branded a sexual predator. So any accusation must be thoroughly investigated, but in a way that affords the alleged perpetrator the essential elements of due process — among them the right to full notice of the allegations and to be represented by counsel; the opportunity to cross-examine witnesses and present a defense; and the chance to have the dispute overseen by an independent and impartial decisionmaker, preferably based on a standard higher than a mere preponderance of evidence.

"The truth is that the system established by the prior administration has failed too many students," DeVos said. "There must be a better way forward. Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined."

The condemnation was swift. "This administration wants to take us back to the days when colleges swept sexual assault under the rug," said Arne Duncan, education secretary under President Barack Obama. "Don't be duped by today's announcement," said Fatima Goss Graves of the National Women's Law Center. "What seems merely procedural is a blunt attack on survivors of sexual assault."

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The proof will be in the details of what the Trump administration produces. Still, you don't have to be a DeVos-like conservative to have serious qualms about the existing approach — and to bristle at the dismissal of such concerns. Indeed, you could be a feminist legal scholar at Harvard Law School.

Four such experts — Elizabeth Bartholet, Nancy Gertner, Janet Halley and Jeannie Suk Gersen, hardly DeVos clones — wrote to the Education Department last month describing how many "terrified" college administrators "over-complied" with the Obama administration's directive.

Colleges have adopted definitions of sexual wrongdoing, they wrote, that include "conduct that is merely unwelcome … even if the person accused had no way of knowing it was unwanted, and even if the accuser's sense that it was unwelcome arose after the encounter." Meanwhile, "the procedures for enforcing these definitions are frequently so unfair as to be truly shocking."

In a disturbing new online series for the Atlantic, Emily Yoffe describes University of Massachusetts student Kwadwo Bonsu's encounter with a fellow student who began to perform oral sex on him after they smoked marijuana together, then decided she wanted to stop. After exchanging phone numbers and leaving Bonsu's room, the female student "realized I'd been sexually assaulted" and reported the incident. Amherst police closed the case without charges, but Bonsu was barred from living on campus and then suspended. It took him years to win admission elsewhere.

"At its worst, Title IX is now a cudgel with which the government and school administrators enforce sex rules too bluntly, and in ways that invite abuse," Yoffe writes. If DeVos' legacy is to defuse Title IX's effectiveness in combatting sexual assault, that will be a tragedy. If its intervention means that weapon is wielded with more precision and fairness, that will be an impressive achievement from a surprising source.

© 2017 Washington Post Writers Group