“would require colleges to hold hearings at which a representative of each party has a right to cross-examine witnesses, including the other party, and to provide both students with all evidence gathered in the investigation”
Under Obama, the left advanced the narrative of “rape culture” on college campuses. The structure and rules surrounding the reporting of sexual assaults on campus sided overwhelmingly with accusers, and sometimes left the accused to be tried in campus kangaroo courts.
As Trump’s Secretary of Education, Betsy DeVos has tried to roll some of this back and return due process to campuses. Her efforts have been continually met with resistance.
KC Johnson and Stuart Taylor, Jr. write at Real Clear Politics:
Colleges Bristle as Judges, DeVos Push Protections for the Accused
Education Secretary Betsy DeVos’ proposed Title IX regulations, which are due to be issued in final form early next year, seek to require colleges that adjudicate claims of sexual assault against their students using some of the same procedures to ensure fairness that have long been treated as fundamental by courts. The most important provisions would require colleges to hold hearings at which a representative of each party has a right to cross-examine witnesses, including the other party, and to provide both students with all evidence gathered in the investigation.
But these proposals have generated furious opposition from pro-complainant activists and politicians willing to perpetuate the biases against accused students – procedures initiated by the Obama administration and with which most colleges were happy to comply. Alexandra Brodsky, a co-founder of Know Your IX, the nation’s most powerful pro-accusers’ rights organization, recently promised “massive national student resistance” to the effort to make campus procedures more even-handed.
Josh Richards, a lawyer who regularly represents universities in lawsuits filed by accused students, dismissed cross-examination as being “without any meaningful addition in a truth-seeking function.” This view flies in the face of America’s founding principles, the Constitution, and longtime Supreme Court precedent. The high court has called the right to cross-examination “the greatest legal engine ever invented for the discovery of truth.” Yet Sen. Patty Murray, the ranking Democrat on the Senate HELP Committee, is leading the effort to neuter the regulations’ cross-examination provisions, according to the Washington Post.
DeVos is trying to protect due process, yet Alexandra Brodsky, the activist mentioned above, suggests that DeVos is trying to harm students’ civil rights:
Any day now, DeVos will release her Title IX regs, which will require massive national student resistance against both the administrators and schools that accept DeVos’s regs as an invitation to violate students’ civil rights. Youth organizing is more important than ever.
— Alexandra Brodsky (@azbrodsky) November 29, 2019
Taylor Mooney of CBS News provides some background on how we got here:
How Betsy DeVos plans to change the rules for handling sexual misconduct on campus
The 2011 Dear Colleague Letter urged schools to handle cases of sexual misconduct more promptly than ever before, stating that “If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.” And it explicitly stated that schools must use “a preponderance of the evidence” as the standard for determining guilt in these proceedings; a finding of guilt means “it is more likely than not that sexual harassment or violence occurred.”
The letter also “discourages” allowing the two sides to cross-examine each other, as it may be “traumatic or intimidating” for the alleged victim…
For Mark Hathaway, an attorney who specializes in representing people who claim they were not provided their rights to due process in Title IX investigations, the 2011 letter does not do enough to protect the rights of the accused, allowing schools too much flexibility.
“[The letter] doesn’t say, you know, four bullet points: You need to provide notice — adequate notice; you need to present the evidence; and you need to have a fair hearing,” says Hathaway. “None of those were laid out in a simple way that was understandable, so it allowed the schools to create rather complex, difficult-to-understand policies that don’t provide those protections.”
Prior to 2011, the number of lawsuits filed against universities for failing to provide due process in Title IX cases averaged one per year. It is expected there will be over 100 such lawsuits filed in 2019 alone.
Over the last several years, we have seen numerous examples of young people having their lives ruined based on nothing more than an accusation.
College students deserve the same presumption of innocence and right to due process as all people. DeVos deserves credit for her efforts to return these rights to campuses.DONATE
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