In her strongest address since assuming her post, Education Secretary Betsy DeVos asserted that the Obama administration’s heavy-handed policy that forced colleges and universities to conduct “kangaroo courts” in dealing with accusations of sexual assault has “failed.”
DeVos addressed students and faculty at George Mason University Thursday in long-awaited remarks on the enforcement of Title IX and the need to establish a regulatory framework that serves the needs of all students.
The secretary criticized the Obama administration’s 2011 Dear Colleague letter, in which it sought to end cross-examination of alleged victims by students accused of sexual assault in campus courts and rejected the traditional clear-and-convincing evidence standard of proof in school disciplinary procedures.
The era of “rule by letter” is over.
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.
This unraveling of justice is shameful, it is wholly un-American, and it is anathema to the system of self-governance to which our Founders pledged their lives over 240 years ago.
DeVos made herself clear at the start of her address that “acts of sexual misconduct are reprehensible, disgusting, and unacceptable. They are acts of cowardice and personal weakness, often thinly disguised as strength and power.”
Unlike her predecessors in the Obama administration, however, she gave significant attention to the problem of those students who are accused of sexual assault and denied their due process.
“We need to remember that we’re not just talking about faceless ‘cases,’” the secretary said. “We are talking about people’s lives. Everything we do must recognize this before anything else.”
She said the system put into place by the Obama administration has failed both alleged sexual assault victims and the accused.
“Survivors, victims of a lack of due process and campus administrators have all told me that the current approach does a disservice to everyone involved,” DeVos said, describing the Obama administration’s approach:
Here is what it looks like: a student says he or she was sexually assaulted by another student on campus. If he or she isn’t urged to keep quiet or discouraged from reporting it to local law enforcement, the case goes to a school administrator who will act as the judge and jury.
The accused may or may not be told of the allegations before a decision is rendered. If there is a hearing, both the survivor and the accused may or may not be allowed legal representation.
Whatever evidence is presented may or may not be shown to all parties. Whatever witnesses—if allowed to be called—may or may not be cross-examined. And Washington dictated that schools must use the lowest standard of proof.
And now this campus official—who may or may not have any legal training in adjudicating sexual misconduct—is expected to render a judgment. A judgment that changes the direction of both students’ lives.
The right to appeal may or may not be available to either party. And no one is permitted to talk about what went on behind closed doors.
It’s no wonder so many call these proceedings “kangaroo courts.”
DeVos said “everyone loses” in the current system which some say “protects survivors and thus must remain untouched.”
“But the reality is it doesn’t even do that,” she added. “Survivors aren’t well-served when they are re-traumatized with appeal after appeal because the failed system failed the accused. And no student should be forced to sue their way to due process.”
The secretary addressed the trend the intimidating Obama-era guidance has promoted in which “any perceived offense can become a full-blown Title IX investigation.”
Schools have been compelled by Washington to enforce ambiguous and incredibly broad definitions of assault and harassment.
Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes.
Any perceived offense can become a full-blown Title IX investigation.
But if everything is harassment, then nothing is.
Punishing speech protected by the First Amendment trivializes actual harassment. It teaches students the wrong lesson about the importance of free speech in our democracy.
Harassment codes which trample speech rights derail the primary mission of a school to pursue truth.
DeVos said her department will launch “a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way.”
“We will seek public feedback and combine institutional knowledge, professional expertise, and the experiences of students to replace the current approach with a workable, effective, and fair system,” she said. “To implement sustainable solutions, institutions must be mindful of the rights of every student. No one benefits from a system that does not have the public’s trust—not survivors, not accused students, not institutions and not the public.”
DeVos was condemned by feminists and LGBT activists in July for inviting students who have been falsely accused of and disciplined for sexual assault under the Obama-era Title IX guidance.
Under the guidance, the Obama administration instructed schools to use the “preponderance of the evidence standard to resolve complaints of sex discrimination,” which is used in most civil actions.
To promote its policy, Obama’s deputies in the federal education department engaged the media by consistently pushing the myth that “one in five” college-age women in the U.S. will be sexually assaulted before they leave college.
“The agency’s figures are wildly at odds with the official crime statistics,” nevertheless, began a fact-check video with AEI resident scholar and former philosophy professor Christina Hoff Sommers, who studies the politics of gender and feminism.
According to the Bureau of Justice, the real rate of rape on college campuses is actually closer to 1 in 500. However, armed with the false “one in five” statistic, the Obama administration threatened to cut funding to colleges and universities who did not implement the guidance in its Dear Colleague letter.