Speaking to a crowd at George Mason University, Secretary of Education Betsy DeVos announced that she seeks to overhaul an Obama-era policy that gave college administrations more discretion on adjudicating sexual assault allegations in accordance with Title IX of the Civil Rights Act. The decision has been both praised and condemned from various angles. DeVos stated that she is looking for public feedback on how to properly address issues of sexual assault and looks for as many viewpoints to better respond to such allegations.
Rescinding the “Dear Colleague” letter is the correct decision and here are the five reasons why:
1. Sexual assault accusations will no longer be determined through the preponderance of the evidence.
The “Dear Colleague” letter substantially lowered the burden of proof required for college administrators to determine whether an alleged rapist or sexual assaulter committed a heinous act. The preponderance of evidence is the standard of proof required for civil offenses to show that evidence is at least 50% more likely to have shown responsibility for an act.
One of the most fundamental aspects of criminal law is that prosecutors need to prove beyond a reasonable doubt that an alleged criminal both acted in an immoral manner and possessed the requisite mental intent to commit the crime. Both sexual assault and rape are considered serious criminal offenses and the criminal justice system requires that such a burden of proof is reached before determining whether he or she gets convicted of the crime. The “Dear Colleague” letter deliberately defies that fundamental requirement in the case of alleged sexual assault or rape.
DeVos’ decision to end the ability for college administrators to use preponderance of the evidence demonstrates a return to the evidentiary proof necessary in the real world to convict someone of sexual assault or rape.
2. College administrations will no longer be kangaroo courts that can be abused by radicals.
Since the “Dear Colleague” letter lowered the standard of proof for charges of sexual assault and rape, college administrators were given extraordinary discretion to determine whether a survivor’s testimony goes above the 50% probability required to determine guilt. This, in turn, opens the door to varying interpretations from administrators on what exceeds the threshold to determine guilt.
National Review‘s Tiana Lowe explained more in her July 24 piece on this topic:
But there is another side to the system’s evils, one that has been drowned out by social-justice blathering and a select few Girls Who Cried Rape. Because the guidelines are vague and uninstructive in crucial aspects — such as the rights of sexual-assault victims and the accused, as well as the standards for keeping public statistics of conviction rates — schools vary wildly in how they treat these cases, ranging from extreme bias against men accused of sexual assault to cruel prejudice against sexual-assault victims. For every school that reaches a guilty verdict without so much as text messages submitted as evidence, there is another willing to exonerate a wealthy student at any cost.
Thus, the inconsistency amongst colleges and universities on what determines preponderance of evidence gave rise to various kangaroo courts that created a more substantial problem that violates a fundamental principle of American freedom.
3. It ensures due process rights for those accused.
Due to the nature of these kangaroo courts, it has been shown that individuals who were accused of committing these criminal acts did not receive proper process or notice about the nature of the charges levied against them. There have been instances where college students accused of rape got suspended from their universities as a result of the accusations levied against them because they do not provide evidence to prove that they did not commit the acts in question. The Foundation for Individual Rights in Education (FIRE) described it best:
The Department of Education’s Office for Civil Rights has enforced institutional compliance with Title IX for decades. But beginning in 2011, the agency became far more aggressive and prescriptive in regulating university responses to allegations of sexual assault. Following the Office for Civil Rights’ lead, federal and state legislators began debating and passing legislation governing sexual assault on campus shortly thereafter. As a result of these changes—and more seem likely to follow—colleges and universities are required to treat sexual assault claims differently from other alleged violations of university policy. Unfortunately, the administrative and legislative activity thus far has been almost uniformly dismissive of the due process rights of the accused, stripping procedural protections and making just results less likely. In order to understand what rights you do and do not possess in sexual harassment or sexual assault hearings, it is important to review each of these changes and their origin.
This deliberately unconstitutional act of denying due process to accused students where college administrations claimed to reach the preponderance of the evidence represents the biggest consequence of the “Dear Colleague” letter.
4. It will start the conversation about how to better adjudicate sexual assault allegations through proper means.
Since DeVos announced that she is opening the dialogue to the public on how to properly address sexual assault while adhering to Title IX, this will finally open the door to proper means to adjudicate sexual assault cases without denying due process and without creating kangaroo courts.
For example, Hans von Spakovsky of the Heritage Foundation published a report in which he suggested making it mandatory for college administrators to inform law enforcement of such accusations:
Requiring mandatory referral of sex crimes reported to college officials to law enforcement as a condition of federal or state funding is a legislative proposal that should be seriously considered. This would be the next step beyond the Clery Act, which only requires public disclosure in an annual report of all crimes reported to their campus police or security departments.
Such a system is already in place at the state level in the context of child and elder abuse. These laws typically require certain listed professionals, such as teachers, administrators, school nurses, and coaches, to report suspected abuse to appropriate law enforcement agencies. Failure to report can trigger civil and criminal penalties against the individual and penalties against the institution. Some states even have “universal” reporting requirements, which require any person to report suspected child abuse or neglect. More importantly, 10 states have required those employed at higher education institutions to report instances of child sexual assault. Such a system could be expanded to include campus sexual assaults.
Hopefully, such ideas will be brought to the table so those accused of committing sexual violence not only receive the requisite due process but also will face serious implications for their behavior.
The visceral reaction of radical feminists and leftists over DeVos’ announcement actually exposes their nefarious agendas. As Daily Wire reported earlier, supporters of the “Dear Colleague” letter lost their minds and accused DeVos and Trump of defending rapists and ignoring survivors. Nothing is farther from the truth since the true pursuit of justice comes from allowing the criminal justice system and law enforcement to utilize constitutional procedures and methods to pursue the very justice that radical feminists claim to seek.
Sexual assault survivors should be protected and their agency ought to be restored to the best of their abilities following such a heinous act. However, that should never come at the expense of someone else’s due process rights and other constitutional rights that every single individual accused of a crime must be given. The “Dear Colleague” letter is a travesty and a disservice to the very principles and concepts that the radical proponents of this policy think they defend.
Therefore, Secretary DeVos is absolutely in the right in taking the “Dear Colleague” letter to the woodshed where it belongs.