Seven months ago, the Stanford Review wrote an open letter to Secretary of Education Betsy DeVos.
We wrote that policies inherited from the Obama-era Office of Civil Rights at the Department of Education were failing to serve students, and asked her to reject them. During the past six years, Title IX guidelines have deprived victims and the accused of due process, while failing to produce satisfactory outcomes. With a 2011 Dear Colleague letter, the OCR initiated a misguided regulatory regime that has hurt both victims and the accused.
By instituting a “preponderance of evidence” standard, the lowest in the American justice system, these new guidelines cast doubt on the legitimacy of the process. Though sexual assault could leave permanent physical or mental scars on its victims and result in expulsion for the accused, the standards for determining guilt were inexcusably low. And under the new rules, due process took a beating. Fearing loss of federal funding if they failed to comply with the memo, colleges erred on the side of the victim, sometimes refusing to share the complaint, evidence, or witnesses with the accused. In response, students took to court to protest their treatment.
Today, the Office of Civil Rights is still investigating 304 schools for sexual violence issues. Because the average sexual assault case takes 703 days to resolve at the Department of Education, though, many of these cases won’t see a resolution until the parties involved graduate.
It’s clear then: in the six years since the OCR memo, Title IX investigations have often secured neither justice for the victims or civil liberties for the accused. The system must change.
Today, Secretary DeVos announced that the administration would reject the memo and seek new approaches to adjudicating sexual assault. The Review congratulates the Department of Education for recognizing that the current rules have failed.
Contrary to some critics’ allegations, DeVos’ announcement does not equate to a repeal of Title IX or a free pass to campus rapists. Instead, it is an opportunity to reform some of the less effective and legally dubious parts of the system. The Stanford community should continue to remain active in ensuring that the government’s new sexual assault policies secure justice for sexual assault perpetrators and survivors. Stanford, because of its name and influence, can affect policy. The Review thus calls upon students and administrators to use the upcoming notice-and-comment process to advocate for effective and equitable reforms.
Now is the time to create fair and trusted rules that restore due process to the accused and justice to victims.