Editorial: Betsy DeVos hits the reset button on campus sexual harassment rules
When Education Secretary Betsy DeVos decided to revisit the rules governing sexual assault accusations at colleges, some victims’ advocates feared she would make it too difficult to hold assailants responsible. But the rules released this week make reasonable changes for the most part, curbing some of the excesses of the previous system.
This has been a fraught topic from the start, its history one of pendulum swings. A decade ago, colleges and universities routinely swept allegations of sexual assault under the rug, discouraging victims from reporting, taking little to no action against their attackers and misreporting the numbers. Seeking to change that culture of denial, the Obama administration took strong measures to ensure that higher education took this matter seriously.
But there were ways in which its rules swung too far in the other direction, violating accepted norms of due process and basic fairness. Students accused of assault often weren’t notified in advance of the allegations against them, which frequently involved incidents that had occurred many months earlier that they had thought were consensual. They were denied access to evidence against them and were unable to question their accusers, and yet they could be and often were expelled from school if the ruling went against them.
Many of the accused took their cases to court and prevailed there.
This issue has never been a matter of traditional political ideology. Many a liberal law professor has been horrified by what appeared to be an essential unfairness to accused students. Because these matters weren’t tried in court, though, different rules were allowed to apply.
The new rules fix the worst of the problems while generally protecting students who have been victimized. Among other things, colleges now must notify accused students in writing, allow them to have a representative during hearings and let them view the evidence. Their representative can cross-examine the accuser, but in a separate room if either party prefers, so that someone who may have been a victim of an attack isn’t subjected to a potentially traumatic situation. The same person is not permitted to be both the investigator and the judge of a complaint, and accused students must be given an opportunity to appeal.
Colleges are required to provide support to students who say they were assaulted, including a change in classes to avoid the alleged perpetrator, whether or not a formal complaint is filed.
One protection for victims that should have stayed in place, though, was that colleges had to base their findings on the “preponderance of evidence,“ meaning that even if they were just 51% sure the accusations were true, the ruling went against the person accused. DeVos allows colleges to keep that level or adopt a tougher standard of “clear and convincing evidence.“ Given the new, fair rules of handling accusations, the lower level of evidence is adequate. It is notoriously difficult to prove cases of sexual assault, and there’s no reason for colleges to make that even harder.
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