Last week, Secretary of Education Betsy DeVos issued new regulations for Title IX, which governs how colleges investigate and punish sexual misconduct. DeVos reversed troubling Obama-era guidance which had stripped the accused of the right to an attorney, the right to have a representative question the accuser, and the right to even be informed of the evidence in question.
As we explained last Thursday, DeVos’s new regulations are a necessary step, restoring due process rights to the accused. But it’s worth asking if future efforts should go further, shifting responsibility for addressing campus sexual misconduct from colleges to law enforcement.
In an infamous 2011 “Dear Colleague” letter, the Obama administration interpreted Title IX to suggest that higher education institutions must maintain a quasi-judicial system to try sexual misconduct allegations, with campus officials serving as investigator, prosecutor, judge, and jury. While these officials couldn’t apply penal punishments, they could suspend students, expel them, and permanently smear their reputations — all without due process or even the pretense of a fair trial.
Senator Lamar Alexander, chair of the Senate’s education committee, has previously observed that colleges should “create campus environments that make students safer from sexual assault,” but that Washington should be careful to “not turn colleges into law enforcement agencies.” Criminal activities like theft and drug distribution also occur on campus, but colleges haven’t been charged with setting up special arms to investigate and adjudicate them. Rather, that work is appropriately directed to local law enforcement.
In fact, the evidence is pretty clear that universities were ill-equipped to do what the Obama administration had asked of them. Even a decade on, few Title IX coordinators have the experience that suggests they are equipped to lead quasi-criminal investigations or judicial processes. Our search of online university bios found that, remarkably, less than one quarter of Title IX coordinators at the nation’s top 25 universities (as ranked by US News & World Report) listed any experience in criminal investigation, law enforcement, or litigation. Most are career campus administrators.
This lack of legal and investigative expertise also extends to their staffs. For example, Yale has a staff of 21 Title IX deputy coordinators (Yep, 21; that’s not a typo). Of those whose biographies are online, not a single one lists experience in criminal investigation, law enforcement, or judicial proceedings. One deputy coordinator spent a few early-career years as a paralegal, and that was the most notable experience cited by any staff member.
Even worse, staff lacking appropriate investigative, law enforcement, or legal training have been inundated with troubling professional advice on how to approach their task. As Emily Yoffe related in the Atlantic, back in 2017:
Those adjudicating sexual-assault allegations are told [that] the absence of verbal or physical resistance, the inability to recall crucial parts of an alleged assault, a changing story—none of these factors should raise questions or doubt about a claim. Indeed, all of these behaviors can be considered evidence that an assault occurred.
In other words, Title IX officials were consistently told to regard possible problems with an accusation as additional evidence of its veracity. With some officials bent on pursuing even the most dubious of allegations, this mindset meant that seeking to disprove a charge could become a Kafkaesque exercise.
In 2012, Xavier dismissed basketball star Dez Wells over an accusation that a contemporary criminal investigation found was likely false; the county’s prosecuting attorney said Wells’ accuser was so unbelievable that “there was discussion of charging her with a crime.” In 2015, Indiana University expelled a student for sexual misconduct even though his accuser confessed she had invited him into her bedroom, asked him to retrieve a sex toy, and told him “to have sex with me.” In 2015, Northwestern University launched a Title IX investigation against professor Laura Kipnis — not for any allegation of sexual violence — but for writing which criticized, yep, the university’s Title IX apparatus.
The disregard for due process and basic standards of fairness had predictable results. Over the past decade, the number of student lawsuits against universities for botching their due process rights in Title IX investigations has increased ten-fold. And these lawsuits aren’t frivolous: Of the 300 total lawsuits filed since 2011, federal and state courts have ruled against universities over half the time.
The Foundation for Individual Rights in Education has reported that 85 percent of universities maintain policies that grossly violate due-process protections. Indeed, in a truly un-American bit of venality, nearly three-quarters don’t even bother to offer the accused the presumption of innocence.
DeVos’s new rules bring a long-overdue measure of fairness to Title IX enforcement. Her new regulations give the accused the right to an attorney, to see evidence against them, and to have a representative question the accuser. Yet the reaction to these common-sense corrections shows just how awry things have gone on campus. NBC News, for instance, described the new rules, thusly:
Under reworked federal rules, alleged student perpetrators will have added protections, including the presumption that they are innocent throughout the disciplinary process and the right to be provided all evidence collected against them.
It’s hard to describe how perverse this perspective is. As David Harsanyi pointed out in National Review, the presumption of innocence is not an “added protection” — it’s the protection on which our judicial system rests. It’s the most basic feature of a fair justice system.
It speaks volumes that it’s been missing from most campus courts, and that restoring it is regarded as a radical move. Indeed, given the predilections of campus Title IX officials, Joe Biden’s pledge to reverse course, and the outcry that has met DeVos’s guidance, there are real questions as to whether we can trust that her reforms will stick.
What to do? Given higher education’s appalling record of Title IX enforcement, and the uncertainty about whether it can be fixed, perhaps the next reform should be to hand responsibility for campus sexual misconduct to local law enforcement.
Frederick M. Hess is the director of education policy studies at the American Enterprise Institute. RJ Martin is a research associate at AEI.