Betsy DeVos Strikes a Blow for the Constitution

DeVos wants to bring back due process. Secretary of Education Betsy DeVos has proposed new rules for the adjudication of sexual assault allegations by institutions of higher education. David French writes that, if enacted, the proposals would bring important norms of due process back to such proceedings:

First and perhaps most important, the rules will not only require colleges to permit cross-examination of witnesses (including the accuser), but will also prohibit universities from relying on the statements of any witness who refuses to submit to cross-examination. […]

In addition to mandating cross-examination, the proposed rules grant both parties “equal opportunity to inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint.”

I know what you’re thinking. “Wait. Not only did some schools deny cross-examination, but they also denied the accused access to the relevant evidence in his case, including exculpatory evidence?” Yes, they did deny access to evidence. It wasn’t uncommon for accused students to walk into hearings with only a cursory understanding of the charges against them and partial access to evidence, and then have to respond — on the fly — without access to any legal help.

Yes, the kangaroo courts could be that bad. […]

The rules also dispense with the single investigator/adjudicator model that allowed universities to place a single person in the position of investigator, prosecutor, and adjudicator. There were no safeguards against bias. Again, this requirement is so basic that it’s simply stunning that it has to be articulated.

In a crucial change, the proposed rules protect the First Amendment by significantly tightening the definition of some forms of sexual misconduct. As Reason’s Robby Soave explains, “Under the previous system, administrators were obliged to investigate any unwanted conduct of a sexual nature, which is a fairly wide swath of behavior. Some officials even interpreted this to include mundane speech that happened to involve gender or sex.”

The new proposed rules, by contrast, apply controlling language from the Supreme Court to define sexual harassment as sexual assault, quid pro quo harassment, and “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

[David French, “Betsy DeVos Strikes a Blow for the Constitution,” National Review, November 16]