As he takes office this month, Education Secretary Miguel Cardona is facing no shortage of challenges and controversies. Perhaps the most fraught will be enforcement of Title IX of the Education Amendments of 1972.
Intended to prevent sex discrimination in education, the law has in recent years become the focus of a heated political battle over sexual harassment on college campuses and a legal minefield for schools and students. Now President Joe Biden has a chance to make things better — not by reverting to Obama-era rules, but by revisiting basic principles.
In 2011, attempting to crack down on sexual misconduct on college campuses, President Barack Obama’s administration issued “guidance” that required schools to overhaul how they dealt with such cases. The new rules, though well-intended, laid out opaque procedures for adjudicating cases and established a low standard for guilt. Any deviation from the guidance could result in federal probes or the loss of millions of dollars in funding.
Although they had no particular aptitude for this assignment, colleges and universities nonetheless responded by investigating complicated sexual-assault allegations — in many cases involving alcohol and conflicting testimony — with little regard for legal norms or the rights of the accused.
This approach satisfied no one. Alleged victims said that schools failed to investigate their claims professionally. Defendants said that their rights were violated and that accusers got multiple chances to press the same claims. Lawsuits and charges of racial bias proliferated. In an Orwellian touch, faculty members who raised questions about the process saw their own careers imperiled.
There’s no question that the system failed to uphold due process. Accused students were routinely denied the right to examine evidence, receive written notice of the charges against them, or cross-examine witnesses. Even some previously exonerated defendants found themselves expelled. In one case, a former student was later found “guilty” of assault in absentia, with the judgment upending his career — even after local prosecutors declined to press charges. He later settled a lawsuit with the school and was cleared of wrongdoing.
Last May, Education Secretary Betsy DeVos announced new guidance that attempted to impose order on this system. It narrowed the definition of sexual misconduct, granted accused students the right to a representative who could cross-examine accusers in a formal proceeding, gave both sides equal access to evidence and legal counsel if requested, and provided for adjudication by a jury-like panel, instead of a single administrator. It wasn’t perfect, but it was progress.
Recently, President Biden issued an executive order directing Cardona to review these reforms. That’s needed, but overturning them would be a mistake. Leaving them in place would be better than simply reverting to the pre-DeVos rules. Better still would be an effort to get colleges entirely out of the business of investigating and adjudicating criminal misconduct. Even with better rules in place, bureaucratic star chambers simply aren’t capable of delivering justice in such cases. That’s a job for the police and the courts.
In many cases, victims understandably don’t want to endure the harsh realities of the American legal system, especially under traumatic circumstances. That’s a good argument for criminal-justice reform — not for creating quasi-judicial proceedings overseen by unqualified administrators. A better approach would be to create regional partnerships between prosecutors’ offices and universities that can ensure victims are treated sensitively and given appropriate support while still adhering to norms of due process and professional investigation.
College students deserve a better and more just system, and the Biden administration should undertake to create it — not by reviving what didn’t work, but by rethinking what will.
Michael Bloomberg, the founder and majority owner of Bloomberg News parent Bloomberg LP, served as mayor of New York City from 2002 to 2013. He is currently WHO Global Ambassador for Noncommunicable Diseases and Injuries, UN Global Ambassador for Race to Zero and Race to Resilience, and UN Secretary-General Antonio Guterres’ Special Envoy on Climate Ambition and Solutions.
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