University administrators who can’t bear the thought of heeding Education Secretary Betsy DeVos on campus sexual assault may be more swayed by a recent Appeals Court decision.
At least they should be.
Late last month, DeVos officially rescinded the troublesome Obama-era guidance that stripped due process and fairness from campus assault proceedings, giving accused students little recourse to defend themselves. The Obama administration used Title IX, the law prohibiting sex discrimination in schools, as its tool.
DeVos is now beginning to create a new framework, following a period of public comment. In the meantime, she has encouraged universities to re-evaluate their standards for determining guilt and ensure all students are given a fair hearing.
A few days after that announcement, the 6th U.S. Circuit Court of Appeals issued an opinion that could have a wide impact on universities, and upholds DeVos’ concerns. Michigan is directly affected, since the state is in the court’s jurisdiction. The case is a great example of why the status quo isn’t working.
In 2015, two students (John Doe and Jane Roe in the court records) at the University of Cincinnati met through Tinder and had sex at the male student’s apartment. He thought it was consensual. She didn’t and three weeks later she complained to the school’s Title IX office.
The court stated there was no physical evidence to support either claim, meaning this was a he said/she said scenario.
The university held a disciplinary hearing “after considerable delay,” according to the opinion. The accuser didn’t even bother to show up to the hearing yet the university still found Doe responsible for sexually assaulting Roe. Officials suspended him for two years, reducing it to one year after an administrative appeal.
The plaintiff sued the university, since he’d had no ability to confront his accuser and was denied his due process rights.
“The Due Process Clause guarantees fundamental fairness to state university students facing long-term exclusion from the educational process. ...Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair,” the panel wrote in their decision.
The court concluded, “while the public has a competing interest in the enforcement of Title IX, that interest can never override individual constitutional rights.”
That’s exactly what DeVos has argued.
David Nacht, a lawyer in Ann Arbor, has worked with many students at the University of Michigan accused of sexual misconduct and he’s seen first hand the system’s unfairness. I spoke with him two years ago about some of these cases, and his concerns with how the investigations take place.
Nacht believes the Appeals Court decision might be as important — if not more — than DeVos’ announcement. He sees it as pushing back against a growing cultural emphasis on victims’ rights and the constant drum beat that rape and assault are rampant on college campuses.
The frenzied push to fight assaults, along with threats from the Obama administration to strip federal funding if universities didn’t deal properly with accusations, has fashioned a system that, in trying to protect the rights of one group, denies the rights of others.
Many university officials have basically told DeVos to take a hike, and said they’d continue with current policies aligned with Obama’s directive. University of Michigan President Mark Schlissel told The Detroit News editorial board last month that his “commitment is the same as it was before.” But at least he can see both sides of this issue.
“The consequences are extreme for both parties,” Schlissel says. “It’s extreme for the survivors — imagine having to go to class with someone who assaulted you. And it can be life-altering for the respondents, if there’s a finding against them and they are forced to leave school or take time off. That’s at least a stigma if not worse that stays with them for their whole lives.”
And those high stakes are exactly why due process matters.