For College Students, Due Process Is on the Ballot

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The new Department of Education Title IX regulation implementing much-needed reforms for sexual harassment and misconduct on college campuses is barely a month old, but could already see a short lifespan. Democratic presidential nominee Joe Biden has vowed a “quick end” to the reforms if elected, stating that they “give colleges a green light to ignore sexual violence and strip survivors of their rights.”  

A return to the wild West form of justice on college campuses would be a travesty. For nearly 10 years, hundreds of students and faculty have been subjected to unfair campus disciplinary hearings. Since 2011, when the controversial “Dear Colleague Letter” on sexual violence was released, 647 lawsuits have been filed against universities, thousands of student transcripts have been permanently stamped with “expulsion” or “suspension,” and countless professors have been fired or censured. There is no limit to the trauma and emotional abuse these persons have experienced.

Instead of referring allegations of criminal sexual assault to local police, campus disciplinary committees were told to handle these cases. It was an experiment that went terribly wrong. Survivors were betrayed by complacent administrators; the accused were disenfranchised of their due process rights; and faculty members were silenced by overly broad definitions of sexual harassment. All of this came at a cost of many millions of dollars. The Department of Education reported that following release of the “Dear Colleague Letter” as the guiding principal for Title IX cases, the number of complaints to the Office of Civil Rights increased nearly five-fold, from 17,724 (2000-2010) to 80,739 (2011-2020). More than 150 lawsuits filed against universities over Title IX proceedings have ruled in favor of the accused students.

A “Faculty Resolution in Support of the Prompt Restoration of Free Speech and Due Process on Campus” was signed by more than 260 higher education faculty members from 43 states, representing a broad range of disciplinary backgrounds and political persuasions. The resolution concluded with an urgent appeal: “The undersigned professors call on lawmakers and university administrators to assure the prompt implementation of new policies that will clarify grievance procedures, enhance free speech, and embrace fairness for all.”

The Department of Education took these accounts and over 124,000 public comments into consideration while drafting the new rule that defines the responsibilities of institutions to respond to allegations of sexual harassment, including sexual assault, under Title IX.
 It clearly defines sexual harassment, restores due process to the accused, and protects survivors during every step of the process. 

Most schools, including Amherst College and the University of Colorado-Boulder, have embraced the changes and have responded swiftly to comply with the federal regulation’s posting requirement. The University of Vermont even posted a YouTube video of the training program its staff attended.

Liberals and conservatives both agree the old system is broken and that protections for victims and due process for the accused go hand in hand. The late Supreme Court Justice Ruth Bader Ginsburg eloquently described this in a 2018 interview with the president and CEO of the National Constitution Center. “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing,” Ginsburg said. “It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.” 

The new Title IX regulation from the Department of Education may not be perfect, but it does provide a roadmap to begin to repair our broken campus kangaroo courts. Vice President Biden should understand that we need national standards that are fair to all students. That is the only way to ensure justice for survivors and due process for the accused.

Ed Bartlett is president of SAVE, an organization founded in 2008 to help lead the national policy movement for fairness and due process on campus, at www.saveservices.org.





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