Face Off: Accused students assumed guilty due to Title IX

Betsy DeVos is one of the most controversial education secretaries in American history. During her confirmation hearing on Feb. 7, Democrats denounced her on the Senate floor deep into the night. In fact, her nomination was so discordant that Vice President Mike Pence cast the tie-breaking vote, marking the first-time a vice president has voted to confirm a cabinet secretary. To say that DeVos entered politics as a divisive figure would be an understatement.

DeVos said in a speech at George Mason University on Sept. 7 that her department would revise the rules about how colleges that receive federal funding adjudicate cases of sexual assault. 

Under the Obama-era rules, colleges followed a 2011 “Dear Colleague” letter. This letter, a recommendation published by the United States Department of Education’s Office for Civil Rights, needed to be revised by DeVos because it killed due process for the accused students. 

The 2011 DCL does not require students to cross-examine each other during hearings, but instead allowed them to submit questions to the hearing panel that were deemed appropriate and relevant to the case. Furthermore, lawyers present are not required to ask questions to the panel, and any college may prohibit the practice. 

Students accused of sexual assault can be found guilty under the “preponderance of the evidence” standard and may choose to not answer questions. Any information students who are accused say, however, can be given to the police if a criminal investigation opens; appeals are not required by Title IX, and must go both ways. 

Although the intent of the DCL was designed to be fair to the accuser and accused, in practice it has put the falsely accused at greater risk for punishment. The probability of a guilty verdict using a reasonable doubt standard is 4 percent; if, however, a majority of the evidence is used, then the probability of a guilty verdict is 33 percent, according to Law, Probability & Risk. 

“A presumption of innocence advantages the accused only, and Title IX requires equity,” Laura Dunn—an attorney and founder of the nonprofit, victim’s rights advocacy group SurvJustice—said. “No presumption should be made either way, and schools should engage in an inquisitorial process to determine the truth rather than artificially favor the accused going into it.” 

As one may expect, this policy has caused universities to fail accused students. A report done by The Foundation for Individual Rights in Education said out of the top 53 universities in the country, nearly 73.6 percent did not “guarantee students that they will be presumed innocent,” and 47.2 percent require that fact-finders be impartial.  

Therefore, it was necessary for DeVos to revise the DCL because the former policy essentially required that the accused prove their innocence. The DOE will hopefully develop a better policy that protects the rights of victims and upholds time-honored principles of the rights of the accused. 

Until that day comes, colleges should ignore the DCL and revise their own rules to better fix our broken system of campus sexual injustice.

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