Of all of Donald Trump’s cabinet appointees, few have attracted as much ire as Education Secretary Betsy DeVos. Nor does any other Trump secretary face as troubling a terrain to navigate, save for maybe Health and Human Services Secretary Tom Price. The cost of college has soared to record highs — in no small part thanks to the federal government’s unlimited loans — and faith in the moral benefit and economic necessity of universities has sunk.
And on top of that, DeVos has taken it upon herself to deconstruct perhaps the most contentious of the Department of Education’s jurisdictions: its directives for campus sexual-assault cases, which are issued pursuant to Title IX, the federal law banning sex discrimination in higher education. When DeVos invited experts on the issue to private listening sessions, the voice given to men accused of sexual assault drew outrage from sexual-assault victims.
Obama’s 2011 “Dear Colleague” letter imposed a number of measures on campus sexual-assault cases; they were far too stringent in some domains while ignoring others. Most controversially, this “guidance” document suggested (in practice, required) that universities try sexual-assault cases using the “preponderance of the evidence” standard — meaning a student is punished, possibly expelled, if it’s more likely than not he is guilty — rather than the “clear and convincing evidence” standard, a higher burden that still requires less proof than the “beyond a reasonable doubt” standard used in criminal trials. However, contrary to popular belief, this directive was not terribly consequential — as BuzzFeed notes, studies have found that 80 percent of universities adopted the preponderance-of-the-evidence standard before the letter.
The true flaw of Obama’s letter was the fact that it expanded the authority of a broken system — and limited its capacity to find facts by, for example, discouraging the cross-examination of accusers — rather than fundamentally repairing it. This has resulted in show trials conducted by hapless administrators who lack the power to subpoena evidence, operating either parallel to or in lieu of a criminal investigation.
But there is another side to the system’s evils, one that has been drowned out by social-justice blathering and a select few Girls Who Cried Rape. Because the guidelines are vague and uninstructive in crucial aspects — such as the rights of sexual-assault victims and the accused, as well as the standards for keeping public statistics of conviction rates — schools vary wildly in how they treat these cases, ranging from extreme bias against men accused of sexual assault to cruel prejudice against sexual-assault victims. For every school that reaches a guilty verdict without so much as text messages submitted as evidence, there is another willing to exonerate a wealthy student at any cost.
Left-wing activists have taken to publishing “Dear Betsy” letters, begging DeVos not to reduce her department’s Title IX powers. Yet for all of the hysteria gripping sexual-assault activists, almost no one is happy with the system. Of the dozens of Dear Betsy letters written by sexual-assault survivors begging her not to gut the program, few of the writers actually achieved desirable outcomes. Faith Ferber’s rapist admitted to assaulting her, but American University did not suspend him; they made her, the victim, sign a confidentiality agreement. Jordan Dashow, a man sexually assaulted by a fellow Tufts student, had to appeal his rapist’s sentencing in order to escalate his punishment from an on-campus probation to a suspension. The letters go on, demonstrating an almost Stockholm-like devotion to a process that regularly issues extremely light punishments to rapists.
Unfairly light and inconsistent sentences are often a result of rapes being treated as sexual misconduct rather than assaults — not to mention their being handled by campus tribunals rather than criminal courts that can actually incarcerate rapists. This procedural injustice allows schools to find more people guilty while giving them lesser sentences.
Advocacy groups such as Know Your IX laud the system for focusing on victims rather than the justice process. “Schools, unlike criminal courts, are focused on survivors,” writes Mahroh Jahangiri, Know Your IX’s project manager, at Vox. Support and advocacy for rape victims are obviously important, but justice itself is supposed to be blind. While universities do need an internal system to manage student contact after an assault — say, if the students live in the same dorm — and schools should provide support for victims of trauma, university bureaucrats have proven to be incompetent when administering justice.
Trying a sexual assault without the ability to subpoena evidence, without the ability to gather immediate witness statements, and without allowing cross-examination, a school tribunal cannot issue an honest verdict. Defenders of the status quo say that the process can exist in tandem with a legal process, but in practice, it encourages students to keep sexual-assault cases at the university level with the false promise that they will be speedier and less emotionally taxing than a criminal trial. Both of these promises overwhelmingly prove to be untrue.
Furthermore, shadow trials sometimes emerge behind the theoretically “parallel trial” on campus. The campus-rape tribunal has created a small but lucrative market of highly paid attorneys specializing in witness coaching and intimidation – as well as private investigators, who at many schools cannot even submit evidence, and so operate instead as a latent threat to accusers. Coordinated statements arranged by expensive legal teams can form the basis of an acquittal, especially considering campus tribunals’ lack of focus on evidence.
Obama’s Dear Colleague letter created a broken, biased system with life-ruining potential.
Despite the severe emotional trauma the system regularly thrusts on actual rape victims, Title IX cheerleaders will not stop peddling the myth that the system would work if only the Department of Education gave it more money. Without a focus on evidence collection and preservation, no amount of money will ever make that true.
Schools can and should provide support to sexual-assault victims. But they would be far better off if school health centers administered rape kits and legal guidance and advocacy. A Case Western Reserve study found that rape kits give victims a 90 percent success rate of achieving justice in criminal courts. The federal government ought to help schools empower students to see their rapes as violent crimes rather than miscommunications worthy of a slap on the wrist. If schools reallocated the six-figure salaries they pay to useless Title IX administrators to fund legal counsel for the accused and accusers, and worked with local law enforcement to get justice, the conversation of sexual-assault justice reform could then expand to help all women, not just those privileged enough to attend college.
That Obama’s Dear Colleague letter created a broken, biased system with life-ruining potential should not be a political realization. DeVos is right to note that the Office of Civil Rights, which oversees Title IX’s implementation, has departed from “its role as a neutral, impartial investigative agency.” The truth is that profit-motivated schools can never genuinely pursue blind justice.
— Tiana Lowe is an editorial intern at National Review.