Betsy DeVos Strikes a Blow for Due Process

On Wednesday, the Department of Education put a constitutional feather in its cap, restoring the most basic due process protections to campus Title IX sexual misconduct adjudications. Also Wednesday, presumptive Democratic nominee Joe Biden made a significant constitutional mistake. He pledged to immediately reverse the DoE’s new regulations if he wins the White House. With his promise, he pledged to reinstate a world in which sexual assault allegations like the very allegations Biden faces from Tara Reade would result in summary punishment of accused students without an adequate opportunity to defend themselves. 

First, let’s walk through the most important of DeVos’s changes. You can read through the entire regulation here, but if you don’t have time to peruse more than 2,000 pages of bureaucratic legalese, I’ll sum it up. More precisely, I’ll let the leading nonpartisan higher education civil liberties organization in the United States, the Foundation for Individual Rights in Education, sum it up. (Full disclosure, I was president of FIRE in 2004 and 2005.) The new regulations require: 

An express presumption of innocence;

live hearings with cross-examination conducted by an advisor of choice, who may be an attorney;

sufficient time and information — including access to evidence — to prepare for interviews and a hearing; 

impartial investigators and decision-makers; [and]

a requirement that all relevant evidence receive an objective evaluation.

In addition, the regulations permit schools to use a higher “clear and convincing” evidence burden of proof for sexual misconduct (Obama-era regulations mandated a preponderance of the evidence standard). 

The regulations also required schools to adopt the same definition of student-on-student sexual harassment outlined by the Supreme Court in Davis v. Monroe County Board of Education. To constitute sexual harassment, unwelcome sexual conduct has to be “determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

If you’re a lawyer, you might read the paragraphs above and do a double-take. You mean previous Department of Education guidelines didn’t conform to Supreme Court precedent? You mean they didn’t guarantee cross-examination or access to all the evidence in the case?

No, they did not. The Obama Department of Education’s 2011 “Dear Colleague” letter expanded the definition of sexual misconduct, mandated the preponderance of the evidence standard at all sexual misconduct hearings, and quite notably failed to require that colleges employ the most basic due process protections for accused students.

The result was a constitutional nightmare on campuses from coast to coast. And don’t think this was simply a partisan issue. Progressive professors at Harvard Law School and the University of Pennsylvania sounded the alarm. French Press readers will remember the name of Harvard Law professor Elizabeth Bartholet. She made news most recently arguing against homeschooling and for dramatically expanded state control over a child’s education. She’s no conservative, and she urged the Department of Education to enhance due process protections for accused students. 

I can go on and on, including by noting that the campus due process crisis grew so acute that progressive California state judges effectively halted more than 70 campus proceedings to give schools time to fix the broken process.

I’ll go on still more. Campus sexual assault adjudications permitted under the Obama regulations could get almost fantastically unfair. To take a recent example, the 7th Circuit Court of Appeals heard a challenge to a sexual misconduct adjudication at Purdue that is best-described as a kangaroo court:

After a female college student accused her ex-boyfriend of groping her in her sleep, Purdue University conducted an investigation and adjudication so amateurish and biased that it’s frankly difficult to imagine that human adults could believe it was fair or adequate. The plaintiff (John Doe) alleged that he was “not provided with any of the evidence on which decisionmakers relied in determining his guilt and punishment,” his ex-girlfriend didn’t even appear before the hearing committee, he had “no opportunity to cross-examine” his accuser, the committee found his accuser credible even though it did not talk to her in person, the accuser did not even write her own statement or provide a sworn allegation, and the committee did not allow the plaintiff “to present any evidence, including witnesses.”

Writing for the majority, Judge Amy Coney Barrett was unsparing in her critique of the university process, as I wrote at the time:

[S]he noted that Purdue’s process, with its permanent, devastating consequences for the student’s career, “fell short of what even a high school must provide to a student facing a days-long suspension.” Withholding evidence from the plaintiff by itself was sufficient to render the process unfair. So was the failure to provide any means of meaningfully examining the accuser’s credibility. As Barrett wrote, the evidence suggests that the committee “decided that John was guilty based on the accusation rather than the evidence.”

It’s important to highlight these court cases because there’s an aspect to DeVos’s decision to revise the regulations that media outlets haven’t sufficiently covered—there have been so many adverse court rulings against university processes that federal reform was necessary. Otherwise, students were facing a state-by-state, circuit-by-circuit patchwork of variable due process standards established through court case by painful court case. To put it simply, there is no going back to the Obama era. Courts won’t permit the regression.

Someone needs to tell Joe Biden. He promised a “quick end” to the new regulations if he wins the White House. He said the new regulation “gives colleges a green light to ignore sexual violence and strip survivors of their rights.” 

“Survivors deserve to be treated with dignity and respect, and when they step forward they should be heard, not silenced,” Biden said in a statement. “Today, Betsy DeVos and Donald Trump published a rule that flies in the face of that belief and guarantees that college campuses will be less safe for our nation’s young people.”

Reporters should ask his campaign exactly which of the due process reforms he seeks to undo. Is it the right to cross-examination? The right for both parties to see the evidence in the case? Is it a definition of sexual harassment that matches Supreme Court precedent? 

To make this concrete, let’s take a moment to ponder how Tara Reade’s allegation would play out in a campus court at the height of the Obama-era mandates. Biden denies her allegation. He strongly asserts his innocence. Yet his ability to defend himself would be extraordinarily limited. 

Depending on the campus, he would have limited access to the evidence in the case, including no right of access to exculpatory evidence. He’d have no right to cross-examine his accuser. The adjudicator could rule against him without even hearing any live testimony from the accuser at all.

He’d potentially face an investigator who would also serve as judge—a person who was likely trained to believe that false claims of assault are extraordinarily rare and that a proper “trauma-informed” investigation and adjudication means that “the absence of verbal or physical resistance, the inability to recall crucial parts of an alleged assault, a changing story—none of these factors should raise questions or doubt about a claim. Indeed, all of these behaviors can be considered evidence that an assault occurred.”

Given Reade’s claims, given the number of witnesses who state that she told them about the assault, and given that college Joe wouldn’t even have access to the evidence undercutting Reade’s allegations, then college Joe is toast. He’s done. He’s expelled, and his career ends before it begins. 

No one should question that sexual assault occurs on college campuses or that it’s often intimidating and even terrifying to come forward and make a complaint. Accusers should be treated with respect and compassion. On this point, it’s worth noting that unfair processes—even when slanted in the accuser’s favor—quite frequently fail accusers. 

The reason is obvious. Unfair processes trigger lengthy court challenges, result in judicial reversals, and extend the agony of the adjudication by months and years. 

It is time to stop treating justice and due process as opposing values. Due process is indispensable to justice. In its comments on DeVos’s proposed changes, the ACLU stated this principle well:

Conventional wisdom all too often pits the interests in due process and equal rights against each other, as though all steps to remedy campus sexual violence will lead to deprivations of fair process for the respondent, and robust fair process protections will necessarily disadvantage or deter complainants. There are, however, important ways in which the goals of due process and equality are shared. Both principles seek to ensure that no student—complainant or respondent—is unjustifiably deprived of access to an education. Moreover, both parties (as well as the schools themselves) benefit from disciplinary procedures that are fair, prompt, equitable, and reliable.

To be clear, the ACLU does not agree with all of DeVos’s changes, but note what it does support:

[T]he ACLU values due process, including the right to a fair process in school disciplinary proceedings and the right to be free from discriminatory and overly punitive discipline practices. Due process requires, at a minimum, notice and a meaningful opportunity to be heard. Where serious educational consequences are at stake, school disciplinary proceedings should provide a fair process for assessing credibility, including cross-examination of adverse witnesses, and a chance to review exculpatory and inculpatory evidence.

If a President Joe Biden tries to go back to go back to the bad old days of campus adjudications, he’ll soon find that he can’t unring the legal bell. Courts, law professors, and the ACLU agree—the Constitution demands due process (even on campus) for men accused of sexual assault.

One last thing … 

My favorite pop culture news story of the week was the moment when Elon Musk and his partner/girlfriend decided to name their newborn baby a series of unpronounceable letters, numbers, and Elvish runes. Oh, and the SR-71 Blackbird spy plane was one of the inspirations for the name. No, really:

I always knew that Musk and Grimes were just like me. I, too, love the SR-71 Blackbird. So, for your viewing pleasure, I end with this YouTube documentary about the coolest aircraft ever built:

Photograph of Betsy DeVos by Drew Angerer/Getty Images.