A year ago, U.S. Education Secretary Betsy DeVos rattled college officials nationwide by signaling that she would shred Obama-era regulations on campus sexual assault. Those rules — from the notorious 2011 “Dear Colleague” letter — urged colleges to get tougher on sexual assault allegations or possibly forfeit millions in federal funding.
Many colleges cracked down. But accused students and their families complained that inept campus judicial systems trampled their legal rights. DeVos agreed that the “Dear Colleague” changes tilted the system too much in favor of alleged victims. The education secretary hasn’t yet unveiled the new standards, but preliminary proposals reportedly would bring several changes. Among the most dramatic:
• Colleges no longer would be required to investigate complaints that originate off campus or outside school-sponsored programs. Schools would be allowed to address more complaints via an informal resolution process if that doesn’t shortchange the complainant.
• School investigations no longer would begin with what on many campuses is a tacit assumption of an accused student’s guilt. Specifically, it could become more difficult to decide that a student committed a sexual assault: The Obama-era standard of “preponderance of the evidence” could rise to a tougher-to-meet standard, “clear and convincing evidence.” That’s still short of the criminal justice standard of evidence “beyond a reasonable doubt.” But campus authorities probably would need to be more certain going forward that an assault did happen before they declare a verdict of guilt.
• Whatever the rules, the goal is still the same: Make campuses safer. Punish perpetrators and comfort victims. Deter assaults, harassment and rape. But the new approach would come closer than the Obama-era rules to adding another imperative: Don’t railroad students accused of misconduct. That’s essentially what the 6th U.S. Circuit Court of Appeals ruled recently in the case of a University of Michigan student accused of sexual assault. The court said that an accused student is entitled to cross-examine witnesses.
What’s the best way to achieve fair outcomes? We hope the revised rules contain a terse directive: Campus officials, when you receive allegations of assault, don’t play cop, district attorney, judge and jury. Call law enforcement. Let professionals investigate and decide if criminal charges are warranted. And if they levy charges, let them pursue justice.
Why the police and prosecutors and not the profs and provosts? Because the authorities are likelier to be trained and experienced at these jobs. They know how to handle interrogations and evidence. They don’t have a vested interest in protecting the college’s reputation, as administrators surely do. Nor are they subject to campus culture. They can go where the evidence leads.
By contrast, the more campus officials dabble in their own version of investigating and judging such allegations, the greater the chances that such cases will be mishandled. We understand that not so many years ago, some complaints by sexual assault victims trailed off into limbo. Law enforcement authorities sometimes responded halfheartedly or clumsily.
But attitudes among the public and law enforcement officers have dramatically changed. Today there’s a far greater recognition of sexual violence and a desire to combat it.
FROM AN EDITORIAL IN THE CHICAGO TRIBUNE