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Education Secretary Betsy DeVos is under the microscope after announcing her office will overhaul the Obama administration's rules for college sexual assault investigations.
DeVos can outflank her critics by improving services for survivors while simultaneously restoring accused students' due process rights. The way forward is to use the United States legal system, whose scales of justice are already calibrated better than those of campus kangaroo courts.
In 2011, the U.S. Department of Education's Office of Civil Rights issued a "Dear Colleague" letter interpreting Title IX, the federal law guaranteeing gender equality in education, as requiring campus-level investigations of sexual harassment and sexual assault.
The letter directs colleges to hold hearings, with decisions based on the weak "preponderance of the evidence" standard rather than the more robust "clear and convincing evidence" or the most rigorous standard, "beyond a reasonable doubt."
Federal bureaucrats treated this supposed guidance as an ironclad rule even though it did not undergo the notice-and-comment process Congress requires for administrative agency regulations.
"The era of 'rule by letter' is over," DeVos said in her Thursday remarks, announcing that a notice-and-comment period would precede her instructions.
College officials aren't trained in criminal investigation or evidence collection and can't interview victims, witnesses and suspects nearly as well as a seasoned detective can. They lack the authority to secure subpoenas and search warrants. They can't order forensic tests from the state crime lab. They're hopelessly out of their depth, but it's not their fault. Police work simply isn't their job.
Without the expertise necessary to conduct professional investigations, administrators hold hearings that often turn on personal testimony. The worst punishment colleges can impose is expulsion - a slap on the wrist for a rapist, but an injustice for the wrongfully accused.
Some colleges don't allow accused students to be represented by an attorney, cross-examine witnesses or introduce their own evidence. Some have failed to notify students of the allegations against them and have held secret tribunals outside of their presence.
Title IX probes can run parallel to criminal investigations, but by telling students to report rape to them, administrators diminish the chance that victims will call police. Some survivors might feel pressured to let school officials handle their case, which does them a great disservice.
Federal law requires colleges to disclose annual statistics on reported crimes, but Title IX disciplinary cases are not included in those tallies. Schools have an unfortunate incentive to privatize sexual assault probes and deter victims from pressing charges.
Colleges can do more to help survivors of sexual violence by working in concert with the criminal justice system. Instead of assigning hapless administrators to conduct amateur investigations, they can dispatch advocates to accompany survivors to the police station and counselors to help them overcome the trauma of sexual assault.
Legal-system navigators can help students apply for restraining orders that prevent their alleged assailants from contacting them or going near them under penalty of a jail sentence. We're sure a judge's order would be more effective than even the strongest caution written under college letterhead.
Treating sexual assault like the crime it is rather than the mere violation of a campus rule is the outcome justice demands. Though it affords defendants more due process rights, the stakes are infinitely higher, and reporting rape to the police is unquestionably a tougher response than handling it in-house.
The American criminal justice system isn't perfect, but our courts and Constitution are the envy of the world. Putting these formidable resources to work on college campuses as a matter of policy would strengthen institutions' response to sexual assault.