Universities generally ignored serious allegations of sexual assault until very recently.  Did the Obama Administration policy go too far to correct this problem?

That’s the view of Prof. Lara Bazelon, director of the criminal juvenile justice and the racial justice clinics at the University of San Francisco School of Law, who wrote a NYT op-ed, I’m a Democrat and a Feminist. And I Support Betsy DeVos’s Title IX Reforms.  She wrote:

The current system of adjudicating sexual assault complaints is broken.  Under the rules set up by the Obama administration, hundreds of colleges, including many in California, were placed under federal investigation and threatened with the loss of funding for failing to adequately investigate sexual assault complaints. The definition of what constituted an assault was vastly expanded.  Nonpunitive resolutions such as mediation were forbidden, even if that is what both sides wanted.

The Obama rules were written to address a real problem: a tendency by colleges to sweep sexual assault allegations under the rug.  But it also gave risk-averse schools incentives to expel the accused without any reliable fact-finding process.

Secretary of Education Betsy DeVos issued proposed regulations to address some of these problems.  Some critics have argued that the regulations would weaken protections for victims of sexual assault on campus.  For example, Janet Napolitano, the secretary of homeland security under President Obama and now president of the University of California, argues that the proposed rules would be a step backward.  In a Washington Post column, she says, Don’t Let the Trump Administration Undermine Title IX.  She writes:

The Education Department’s proposed rules threaten to reverse this hard-won progress by unraveling critical protections for individuals who are sexually harassed and undermining the very procedures designed to ensure fairness and justice.  For example, these new rules would require that schools allow representatives of the accused — often lawyers — to cross-examine complainants at live hearings.  This is an intimidating prospect, especially to students wrestling with the already difficult decision to come forward. This will discourage reporting, and it is unnecessary.  While this requirement is supposedly intended to protect the accused, many universities, including UC, already permit the accused to question the complainant and witnesses through a neutral intermediary in a manner that does not cause further harm.

The Education Department would also narrow the definition of sexual harassment.  The department currently recognizes that there is a spectrum of misconduct and requires schools to stop and remedy only behavior sufficiently serious to limit the target’s educational opportunities.  This standard has worked well both for schools and for the Education Department through several administrations and does not need to be fixed.  The new, narrower definition risks leaving serious conduct unaddressed — especially at schools that adopt a higher evidentiary standard, which the proposed rules also allow.

Prof. Bazalon disagrees, arguing that the proposed rules are imperfect but would take important steps to fix problems in the current rules:

Here is how they would work.  Cross-examination would be conducted by an adviser for the accused (not, as some coverage has erroneously said, by the accused.)  The accuser may sit in a separate room or participate via videoconference.  The right to cross-examine goes both ways:  The accused must also answer questions posed by the accuser’s adviser.

The changes would also do away with the problematic “single investigator system” where the person who interviews the witnesses and gathers the facts also serves as the judge and jury — a method the California State University System uses for its 485,000 students across 23 campuses.

The revisions are in line with court decisions that have characterized the current system as unfair.  In August, the Court of Appeals for the Sixth Circuit, ruling in a case from Michigan, declared that if a public university adjudicates what is essentially a “he said, she said” case, “the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”  This year, two California appellate courts have overturned university decisions to suspend students for committing sexual assault because their procedures were so lacking in basic due process.

Citing cases handled by her clinic, Prof. Bazelon is particularly concerned about the effect of the current rules on black men, who are especially vulnerable to being punished unfairly (though everyone who is accused – and makes a complaint – should have a fair procedure).

This situation presents a dilemma of how to design a system that appropriately protects members of two groups that historically have been victimized.

Ideally, there would be a regulatory negotiation in which representatives of all the stakeholder groups would work out a fair and reasonable system.  Unfortunately, given the intense political polarization, it is hard to have confidence in the process or the resulting rules.

We will have to see how well the new rules work in practice.