For far too long many college administrators downplayed, or even ignored, the prevalence of sexual assaults on campuses. Victims weren’t believed, told their clothing or behavior invited the assault and they had to withstand repeated retellings of what they had endured.
With good intentions, the Obama administration sought to remedy this problem. But, its strict guidance for how colleges handle allegations of sexual misconduct (and even the definitions of such misconduct) and the creation of a campus judicial system parallel to existing courts but with lower standards of due process are having repercussions that have forced a rethinking of the this difficult landscape.
Although many are rightly uncomfortable with President Donald Trump, himself accused of assaulting women, and Education Secretary Betsy DeVos overseeing a revision of federal policy regarding campus sexual assaults, a reassessment is needed.
On Friday, the Department of Education withdrew the Obama administration’s guidance. It has pledged to gather input from the public and experts for new rules that it will write. Those rules must continue the serious attention given to campus sexual assault. It can do this by ensuring any new rules are built on a foundation of justice for both alleged victims and alleged perpetrators.
Writing for The Atlantic, Emily Yoffe offers numerous examples of how well-meaning federal guidance has gone too far, often to the detriment of male students who are shunned and shamed long before a determination of their guilt or innocence has been completed, and to victims, whose cases are often bogged down in the new bureaucracy created to handle campus sexual misconduct.
Through a series of letters and reports to colleges and universities, the Department of Education’s Office of Civil Rights lowered the standards of proof in sexual misconduct cases and set up a review system where one administrator can act as an investigator, judge and punisher without speaking to the accused or, in some cases, even notifying the alleged perpetrator of the accusations against him or her.
In one instance highlighted by Yoffe, a male student was barred from most of his college campus for months before university officials found him not responsible for sexual misconduct, the same conclusion the town’s police had reached months earlier. Yet, he was barred from campus for the remainder of the academic year because he had used the female student’s name in an email seeking help with his situation.
He ultimately withdrew from the university. He was not accepted by other colleges because of the allegations against him.
His family sued the university, which resulted in an undisclosed settlement. Universities are facing, and losing, growing numbers of lawsuits like these, prompting school leaders and legal advocates to call on the civil rights office to raise the standards of evidence so they are more in line with judicial proceedings.
Lee Burdette Williams, vice president for student affairs and dean of students at Wheaton College in Massachusetts from 2009 to 2014, called herself the “dean of sexual assault” in a retirement essay published in Inside Higher Education. She told Yoffe that many of the complaints involved first-year students who were inexperienced about sex and how to talk about it, resulting in embarrassing situations. Forcing campuses to treat these misunderstandings as misconduct takes time away from handling actual assaults.
In 2010, the average campus sexual misconduct investigation was resolved in 289 days. By 2016, that had risen by 963 days, according to BuzzFeed.
This leaves victims and alleged perpetrators, who could be sanctioned soon after a complaint is made according to the OCR guidance, feeling betrayed and frustrated.
The Education Department’s Office of Civil Rights had good intentions with the guidance it offered colleges and universities regarding sexual misconduct. In practice, new requirements aren’t working as intended, thereby shortchanging all involved in these situations. The Trump administration is right to revisit them, but it shouldn’t simply throw out the Obama administration rules without a full discussion, with college officials, legal experts, victim advocates and others, about how to best to protect all students.