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Former Secretary of Education Betsy DeVos in 2020.
Photo:
Matt York/Associated Press
College students have had more due process protections of late, but the Biden Administration has other ideas. That’s one important takeaway from a new report by the Foundation for Individual Rights and Expression, or FIRE.
Every year since 2017 the nonprofit civil-liberties group has analyzed how dozens of top-ranked schools respond to allegations of non-academic misconduct, including sexual assault and harassment. For the 2021-2022 school year, FIRE graded 53 colleges and universities based on 10 elements of due-process protection.
The good news is that the mean due process score for Title IX cases was 12.9 of a possible 20, while the mean score for sexual misconduct cases handled outside of the Title IX framework was 7.71. That’s an improvement from the 2019-2020 school year, when the mean score for all sexual misconduct cases was 5.49.
What changed? In May 2020 former Education Secretary
Betsy DeVos
finalized a rule that restored basic fairness to Title IX proceedings. Her reforms required colleges to provide the same written notice about allegations to the accuser and accused. The rule also mandated that schools let both parties present and challenge evidence and ensure equal rights to appeal.
FIRE found that as schools changed their policies to satisfy the DeVos rules, their Title IX due process scores improved. FIRE further suggests the DeVos reforms had a positive “‘spillover’ effect” as schools adopted similar language across their misconduct policies. The new report also shows that serious due process deficiencies persist.
The DeVos reforms established a presumption of innocence in Title IX proceedings. But FIRE found that an “explicit guarantee” of this presumption doesn’t extend across all disciplinary policies at more than 60% of the 53 universities it examined. The DeVos reforms unfortunately left intact a “preponderance of evidence” standard for Title IX cases under which accused students can face ruinous penalties if adjudicators are merely 50.1% convinced they did something wrong.
FIRE also found that nearly 72% of the 53 schools failed to provide “timely and adequate notice of the allegations to students accused of wrongdoing before expecting them to answer questions about the incident.” Only 15% guaranteed “a meaningful hearing, where each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility.”
The Biden Administration wants to roll back these protections even more under a new Title IX rule proposed in June. The new rule offers no right to cross-examine witnesses or to a public hearing. The Department of Education would also let a single adjudicator investigate a case, bring the charges and decide the outcome: police, prosecutor, and judge in one.
The Administration’s Title IX czar
Catherine Lhamon
attacked the DeVos reforms as a return “to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” That was nonsense, and FIRE now counters that while the due process protections “currently in place are grossly inadequate, we may soon be calling these the ‘good old days.’”
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