DeVos signals due process victory with Title IX changes

Grace Leake

Secretary of Education Betsy DeVos is planning to change Obama-era guidance on sexual assault in colleges — and that’s a good thing.

Last Thursday, Betsy DeVos announced her plans to reconsider the Obama administration’s interpretation of Title IX. This law, passed in 1972, bans gender discrimination in education. During the Obama administration, the Department of Education’s Office of Civil Rights released the now infamous “Dear Colleague Letter,” a document that expanded the scope of Title IX and gave colleges directions on handling sexual harassment and assault.

Publicly funded schools, faced with the threat of losing access to federal student aid, quickly complied with the department’s demands. However, many of the procedures outlined in the Dear Colleague Letter seriously violated due process principles.

For instance, the department instructed colleges to use a “preponderance of the evidence” burden of proof when evaluating complaints. This standard finds the accused guilty if more than 50 percent of the evidence points towards their guilt. Preponderance of evidence is the most relaxed standard in the whole judicial system. In contrast, sexual assault cases tried outside the university demand the much higher standard of guilt established “beyond a reasonable doubt.” The consequences of a guilty finding are weighty; students are subject to social ostracization and possible expulsion that will have lasting effects on their futures. Is it right to use such a flimsy standard when dealing with such serious crimes, simply because these crimes occur in a university setting?

In addition to lowering the standard of evidence, the Dear Colleague Letter also created a form of double jeopardy by forcing colleges to let accusers appeal a ruling of not-guilty. Even when a student is found innocent, they can still be tried again in a blatant obstruction of Fifth Amendment rights. Protecting individuals from being tried more than once for the same offense, the Fifth Amendment is a fundamental element of justice. Without this principle, a person could be prosecuted again and again until the accuser receives a decision they like. The accused is haunted by an allegation that cannot be settled in a final resolution of innocence. This avenue to prosecute indefinitely until a guilty sentence is passed has no place in a society purporting to assume innocence until guilt is proven.

Even more distressingly, the department restricted alleged perpetrator’s freedoms in court. It discouraged colleges from allowing students to cross-examine their accusers, citing the potential “traumatic or intimidating” effect upon the alleged victim. But cross-examination is one of the most basic elements of a fair trial. It allows both sides to analyze the others’ arguments, to sift reality from falsehoods and give the adjudicators a more complete view of the evidence. To take away the right of cross-examination is to make a mockery of the entire court process.

If DeVos reforms Obama-era guidance, it will be a sweeping victory for due process rights across the nation and its universities. However, critics are already declaring DeVos as being “pro-rape.” Many rape victims never speak up or receive justice, and critics rightfully ask if it is appropriate to expand rights for the accused when rape victims face so much suffering. However, lowering the standards of justice won’t help protect victims, and will only imperil others’ civil rights. To be pro-justice is not to be pro-rape. A false dichotomy is being presented. Protection of the victim does not demand violation of the accused’s rights. 

Combating rape and sexual harassment on campus should be one of the UT community’s main goals. It is imperative that each student, faculty member and administrator should fight for this change. Change starts on the individual level, with honest conversations about and alertness to sexual harassment and situations that could lead to assault. Educational programs that UT has implemented, such as Haven and AlcoholEdu, are steps in the right direction. There is still much ground to cover. 

But in the pursuit of protecting victims, we must not allow the basic rights of the accused to be violated. We must strive to protect all students, whether they are the accusers or the accused. If we don’t, we create a sham justice system that disservices our whole campus.

Leake is a Plan II and business freshman from Austin. She is a guest columnist.