Betsy DeVos was one of President Trump’s most unconventional and controversial cabinet appointments. When she was nominated for Secretary of Education, her appointment drew national, bi-partisan backlash. Critics from both parties, myself included, attacked her for being woefully unqualified and painted her as an ultra-conservative opponent of public education.
Yet her tenure as Education Secretary has gone better than even the most optimistic of her critics could have hoped. She’s emerged as an unlikely advocate for equity and fairness in our public-school systems. When President Trump rescinded an order involving the treatment of transgender students at public schools, Secretary DeVos fought vociferously behind the scenes to include anti-bullying protections for students with non-traditional gender identities. Now, she seems to have struck upon her next success.
On Sept. 7, DeVos announced that the Department of Education intends to walk back Obama-era guidelines on how colleges should treat sexual assault cases and said that the department should look to promote “more effective, equitable enforcement of Title IX.” This Obama administration policy, known colloquially as the “Dear Colleague” letter, admirably set out to bring the oft-overlooked issue of sexual assault into the spotlight – yet also wound up viciously suppressing the rights of the accused.
Immediately after her announcement, the Secretary’s critics were back at the microphone. Democratic Senator Kamala Harris tweeted out “Survivors of sexual assault deserve to be believed, not blamed.” Renée Graham of the Boston Globe lamented the fact that “DeVos mentioned the rights of the accused as often as she mentioned sexual assault survivors.” While DeVos’ critics accuse her of eroding protections for rape victims, the words of the Education Secretary tell a different story: “A system without due process protections ultimately serves no one in the end.”
A closer examination of the Obama-era policy reveals just why the Secretary’s next steps toward Title IX reform can’t come soon enough. The “Dear Colleague” letter sent out by the Obama administration held institutions accountable for the way they’d botched investigations in the past and forced them to change the way they handle sexual assault cases or else risk losing crucial federal funding. But many of the demanded changes also eroded due process and ignored the rights of the accused.
Obama’s 2011 missive required that schools shift to a “preponderance of evidence” standard in their disciplinary proceedings. For those unfamiliar with with legal jargon, the preponderance of evidence burden only calls for 51 percent certainty that the misdeed occurred. It comes as no surprise that both the American College of Trial Lawyers and the American Association of University Professors have spoken out against this easing of the burden of proof. After all, the repercussions of being found guilty of sexual assault go far beyond getting kicked out of college. A guilty verdict tars a student’s reputation forever—deservedly so, if they’ve actually committed the crime they’re charged with. But we wouldn’t put someone in jail for a crime we’re only 51 percent certain they’ve committed—and we shouldn’t be willing to ruin their life that quickly either.
These Obama-era reforms have radically transformed institutions of higher education. A study from the Foundation for Individual Rights in Education, an academia-focused group of civil libertarians, found troubling disciplinary policies in place at almost 75 percent of the top 53 universities in America. At these universities, students accused of rape aren’t guaranteed to be presumed innocent until proven guilty and are often not allowed to have a lawyer present during disciplinary hearings. Professors from top law schools like Harvard and Stanford have signed on to an open letter condemning such clear violations of due process rights. With the Constitution tossed aside at universities across the country, it’s no surprise that the civil rights division of the Education Department has 360 open investigations into the potential mishandling of sexual misconduct allegations by universities and colleges. Rules meant to protect victims of sexual assault have inadvertently committed another – an assault on the Constitution and the right to due process.
The life-ruining implications of Title IX policy have played out right here at the University of Massachusetts. Kwadwo Bonsu was an engineering student here at the UMass, who was set to graduate in the spring of 2016. At a fraternity party in the fall of 2015, he had a sexual encounter with a young woman. She initiated the sexual escalation of their encounter, acknowledged that he was respectful of the fact that she didn’t want to have full-on intercourse and even gave him her phone number after.
Still, she believed that she had been sexually assaulted and formally reported her rape to the Amherst Police Department. Any rape allegation should be taken seriously and the Amherst Police did just that. They conducted an investigation, which concluded with no charges being filed. Shortly after, the case was dropped.
Despite the fact that, in the words of The Atlantic, the woman’s “own statement does not describe a sexual assault,” the UMass administration sanctioned Bonsu. Originally, he was banned from all but one dining common and was banned from all dormitories but his own. Eventually, he was barred from the campus in its entirety and suspended from the university. He ended up dropping out and was rejected from several other universities he applied to. His life was turned upside down, over a patently false claim and a bureaucracy set up to disregard the rights of the accused.
When DeVos spoke about enforcing Title IX more equitably, she hit the nail on the head. Under our current system, rapists like former Stanford student Brock Turner can get off practically scot-free while innocent students like Bonsu see their futures derailed. Justice needs to be restored on both sides of the table.
The Education Secretary is on to something and it isn’t just a national issue—the unintended consequences of Obama-era sexual assault policy have unfolded right here at UMass. Every day that we allow these travesties of justice to occur on our college campuses, we not only violate the constitutional rights of the accused, but delegitimize the entirely necessary fight against rape and sexual assault.
Editors Note: When describing the young woman’s experience, the word “described” was changed to “believed” to clarify her original story in the Atlantic article referenced in the piece. “UMass Police Department” was changed to “Amherst Police” to clarify where the sexual assault was reported. Additionally, a sentence in the sixth paragraph was added after a technical error in transitioning from print to web.
Bradley Polumbo is a Collegian columnist and can be reached at [email protected] or @brad_polumbo on Twitter.
