I spent 4 years working in Student Affairs at the University of Southern California. In 2006, I got my first job working with students as a resident advisor, and then served in a number of other roles until 2010 when I finished my masters degree in education.
During this period, the higher education community was struggling to comply with the U.S. Supreme Court’s decision holding that student-on-student sexual violence could trigger Title IX, which prohibits sex discrimination in educational institutions that receive federal funding.
Schools rushed to set up quasi-judicial review processes to respond to complaints.
While I was there, USC seemed to be a hotspot, with high-profile accusations against members of the football team (sadly, a recurring issue). As we would find out years later when survivors went public about their experiences, the response of the USC Office of Judicial Affairs was marked by skepticism and hostility to survivors. Not surprisingly, the refusal to properly adjudicate these claims made the campus a dangerous place for students, with studies showing that one-in-three women at USC has experienced sexual harassment or assault.
USC’s struggle, however, was not unique. A study by the National Institute for Justice found that the processes put in place by schools to resolve sexual assault complaints were rife with secrecy, vagueness and inconsistencies that frustrated both survivors and those accused.
In 2011, the Department of Education (DOE) finally stepped in and issued guidelines under Title IX designed to formalize the process across institutions. The 2011 Dear Colleagues Letter from the DOE’s Office of Civil Rights (OCR) stressed the need for “equitable resolution” of all complaints, starting with an “adequate, reliable and impartial investigation” where neither party receives any advantageous treatment.
Under this “fairness” rule, punitive action would only be justified if the investigation found the accusations were more likely true than not, a so-called “preponderance of the evidence” standard. A 2014 Q&A expanded on what an effective investigation should look like.
The Trump Administration signaled early that it intended to abandon the “fair” investigation rule and put a thumb on the scale in favor of the accused. Under the new rules, released last Wednesday, schools are allowed to impose a heightened “clear and convincing evidence” standard, raising the bar of proof that survivors would have to meet. The new rules also require that schools allow attorneys to “cross-examine” survivors and their witnesses. Finally, schools will no longer be required to investigate claims that occur off school property.
The changes under Betsy DeVos are consistent with demands by fringe conservatives to apply criminal law principles to campus sexual assault cases, but the changes are not consistent with educational priorities. School adjudications are different from criminal adjudications and serve vastly different purposes. Criminal prosecutions exist to determine guilt and meet government sanctioned punishments, which implicate fundamental rights, such as imprisonment or even death.
Schools, on the other hand, adjudicate cases in order to ensure a minimum level of student safety, and have no authority to impose any punishments beyond expulsion, and do not implicate fundamental rights.
The application of criminal law principles to school adjudications creates a mismatch between goals and methods. For example, if the goal is student safety, then it makes no sense to ignore student-on-student violence that occurs off-campus, especially in the surrounding neighborhoods. Furthermore, allowing attorneys to cross-examine survivors is simply cruel, and the power dynamics at play will likely result in bullying.
This mismatch also creates dangerous inconsistencies in campus rules. The new DeVos rules only apply to sexual assault cases, which means that a student who punches, stabs, murders or commits any other violent crime against another student, can still be removed from campus based on a “preponderance of the evidence” standard. Only a student accused of sexual assault will get extra rights and protections.
The DOE offers no explanation for why these cases should be treated differently, but it’s not difficult to figure out. The new DeVos rules mirror a “credibility discount” assumption that already exists in criminal law. In other words, we assume women are lying about sexual assault and that it must have actually been their fault somehow. The DeVos rules institutionalize this assumption on campus, forcing survivors to overcome a blame the victim mentality in addition to producing a higher level of evidence.
Let’s be clear, the DeVos rules are dangerous. These rules discourage women from coming forward. Many survivors already hesitate to come forward because so many sexual assaults occur in “he said, she said” situations, such as at the hands of friends, boyfriends or acquaintances in the privacy of a campus dorm room or apartment. The DeVos rules raise the bar again, telling survivors that, even with evidence, the deck is stacked against you.
But if we really care about campus safety, then we desperately need survivors to come forward. We know that the vast majority of sexual assaults are committed by a very small group of serial offenders, who continue to rape because they are getting away with it. One courageous survivor speaking out can disrupt this cycle and save dozens of other people from becoming survivors by getting those serial offenders off campus. Discouraging women from coming forward and putting up additional barriers to protect serial rapists puts the entire campus community in danger.
And we should remember that sexual harassment and assault is not just an issue on college campuses. It is also an issue in elementary and secondary education. The Brett Kavanaugh hearings and other high-profile cases involving privileged high school boys committing sexual assaults threw open the door on this insidious and underreported problem of sexual assaults in high schools.
The 2011 OCR guidance letter was the result of decades of discussion, debate, trial and error in the higher education community and beyond. Survivors and administrators worked hard, often thanklessly, trying to build an infrastructure that was fair and equitable to all parties.
The DeVos rules shred that progress in the name of a fringe conservative ideology.
Since much of the DeVos rules are optional and do not reflect decades of developments in educational policy or best practices, schools should continue to follow the 2011 and 2014 guidance where ever they are able to do so.
Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce.