by The Editors · September 8, 2017
Yesterday, Secretary of Education Betsy DeVos took a welcome step toward restoring a measure of justice and sanity to American higher education. In a speech at George Mason University — and in a follow-up interview with CBS News — DeVos indicated that she intended to withdraw Obama administration “guidance” on adjudicating sexual-assault claims on campus and replace it with a regulatory rulemaking process that is intended to protect students from sexual assault and preserve essential civil liberties.
It’s hard to overstate the legal and moral necessity of this action. First, let’s deal with the law. In 2011, the Obama administration issued a now-infamous “Dear Colleague” letter that required universities to lower the burden of proof in sexual-assault adjudication to a “preponderance of the evidence” standard (50.1 percent probability) without also adequately preserving essential due-process rights such as access to counsel, access to available evidence, and full and fair cross-examination of witnesses. At the same time, the administration commenced dozens of open-ended investigations of universities — acting on claims that they were insufficiently committed to protecting women from rape and applying the new guidance to evaluate university policies.
These actions were fundamentally lawless. No American administration has the ability to rewrite the law by merely issuing a letter. At the very least, the Obama administration should have conducted a notice-and-comment regulatory rulemaking process in accordance with the Administrative Procedure Act. Even then, the regulation would still have to be consistent with governing federal statutes and comply with the Constitution. But Obama’s Department of Education ignored these steps and instead violated the APA, Title IX, and the Constitution in an ideologically motivated trifecta of campus tyranny.
The result was entirely predictable. Campuses, fearing the loss of federal funds and pushed by their own internal constituencies who pushed ludicrous and discredited claims that up to one in five female students would be sexually assaulted during college, created a vast, morally outrageous, and oppressive system of kangaroo courts. According to a study released this week by the Foundation for Individual Rights in Education, 73.6 percent of America’s top universities don’t guarantee students a presumption of innocence, fewer than half require that fact-finders be impartial, and a full 58.5 percent of institutions don’t “provide students with a meaningful opportunity to cross-examine witnesses” in cases of sexual misconduct. And this is a partial list of university legal failures. All told, 45 of the 53 rated colleges received a “D” or “F” for their commitment to due process.
But those are dry statistics. The individual stories are harrowing, and DeVos provided startling examples in her speech. Schools have punished students even though the alleged “victim” claimed that nothing happened. They’ve investigated and punished professors and students for engaging in First Amendment–protected speech. They’ve refused to allow students to introduce exculpatory evidence. And they’re facing an avalanche of lawsuits from aggrieved students as a result. Brooklyn College professor K. C. Johnson has compiled a list of at least 60 university litigation defeats since the Obama administration issued its “Dear Colleague” letter, and the list often expands by the week.
Schools have been caught between the hammer of an overzealous and lawless Department of Education and the anvil of private litigation. Their choice? Follow the Constitution and potentially lose government funding. Comply with Obama-administration directives and potentially face the wrath of a federal judge.
DeVos is bringing order to the chaos. By commencing a regulatory rulemaking process, she’s actually following the law. Any resulting regulations will be in compliance with the Administrative Procedure Act, and the public will have had ample opportunity to point out and protest any constitutional or conceptual flaws. And if her proposed regulations track the goals she outlined in her speech, they’ll restore the proper constitutional balance to sexual-assault adjudications.
Rape and sexual assault are serious crimes, but no accusation is serious enough to strip from accused students the most basic constitutional protections. Take, for example, the right to cross-examine witnesses. As Justice Stevens noted in United States v. Salerno, “Even if one does not completely agree with Wigmore’s assertion that cross examination is ‘beyond any doubt the greatest legal engine ever invented for the discovery of truth,’ One must admit that in the Anglo American legal system cross examination is the principal means of undermining the credibility of a witness whose testimony is false or inaccurate.” Can any judicial system be “just” if it deprives the accused of this most basic right?
While rape and sexual assault are best adjudicated in court, any campus process must, at a minimum, preserve all the traditional due-process protections — including the right to counsel, the right to an impartial judge and jury, the right to a full and fair notice of the charges against the accused, and the right to see the evidence in the case. Anything less stacks the deck against the accused, and anything less exposes colleges to liability for violating the constitutional rights of its students.
DeVos has commenced the necessary, lawful regulatory process. She must now resolutely see it through to its proper conclusion. Already, hysterical voices are accusing her of being “pro-rape,” but protecting due process is no more “pro-rape” than permitting cross-examination in the most serious criminal trials is “pro-murder.” The Constitution has already recognized the necessary rights. It is now up to Secretary DeVos to articulate and protect them. She is off to a promising start.