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The Daily Signal
Betsy DeVos
Stands Up for Due Process Rights in Campus Sexual Assault Cases
Hans von Spakovsky, Elizabeth Slattery
September 08, 2017
Education Secretary Betsy DeVos announced in a speech Thursday that she
will roll back an Obama-era “guidance” document that drove colleges to
implement Star Chamber-like tribunals to mishandle sexual assault cases.
The guidance forced colleges to weaken already minimal due process
protections for those accused of rape and sexual assault, and
threatened schools that refused to do so with losing federal funding.
The Education Department 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.”
DeVos highlighted a proposal by two former prosecutors for states to
set up specialized centers with trained professionals for investigation
and adjudication of sexual assaults.
Another proposal is mandatory reporting of sex crimes to law
enforcement as a condition of federal or state funding.
States already do this in the context of child and elder abuse,
requiring teachers, administrators, school nurses, and coaches to
report suspected abuse to appropriate law enforcement agencies. Failure
to report can trigger civil and criminal penalties against the
individual and penalties against the institution.
These proposals would take the pressure off colleges to conduct
quasi-criminal proceedings, which college administrators are ill
equipped to do. No one would expect a college tribunal to handle a
murder on campus.
It makes no sense for a college to handle other serious crimes such as
sexual assaults and rapes. Rapists are criminals, not just college
students who violate a school’s honor code. They should be prosecuted
in criminal court, and if found guilty, punished accordingly, including
having to register as convicted sex offenders.
But the Obama-era guidance led colleges to steer students away from
reporting crimes to the authorities, and required use of the low
“preponderance of the evidence” standard of proof when investigating
and disciplining students accused of sexual assault.
This led to colleges barring an accused student from reviewing the
evidence against him or cross-examining his accuser; refusing to allow
an accused to hire an attorney or, when attorneys were permitted,
prohibiting them from speaking on the accused’s behalf; and
implementing other procedures that fly in the face of the protections
typically afforded to someone accused of a crime.
The guidance letter received criticism from liberal and conservative
quarters, from law professors to think tank scholars to members of
Congress and many others.
Law professors at the University of Pennsylvania wrote that this
“approach exerts improper pressure upon universities to adopt
procedures that do not afford fundamental fairness,” and that “due
process of law is not window dressing.”
Harvard law professors similarly decried the procedures as
“overwhelmingly stacked against the accused” and which were “in no way”
required by federal law. It also led to numerous lawsuits filed by
students who were punished in these kangaroo courts.
In her speech, DeVos stated, “The notion that a school must diminish
due process rights to better serve the ‘victim’ only creates more
victims.”
Instead, due process must be “the foundation of any system of justice
that seeks a fair outcome. Due process either protects everyone, or it
protects no one.”
Sexual assault investigations and adjudications are serious issues that
involve complicated procedures designed to get at the truth and prevent
further harm to victims and those falsely accused.
Compound this complexity with a massive federal bureaucracy and various
interest groups with their own agendas, and it is little wonder that
alleged victims, alleged perpetrators, and universities themselves are
often left with no clear idea of their rights and responsibilities
under the law.
Reversing the ill-advised Obama-era guidance is the first step to
ensure that sexual assaults are properly investigated and adjudicated
by trained professionals, leaving college administrators, as DeVos
said, “to focus on what they do best: educate.”
Read this and other articles at The Daily Signal
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