Column: Betsy DeVos’ Grave Error on Campus Sexual Misconduct

Heated debates about sexual misconduct are a nearly constant sideshow to the three-ring Trump circus these days. They are indeed important and emotional, but too often lack an appropriate understanding of context and law.

The most current example arises in the wake of Secretary of Education Betsy DeVos’ announcement of proposed rule changes to the Title IX guidance on sexual misconduct on college campuses. The current rules were put in place by the Obama administration. (Of course, Trump’s folks would roll back anything tied to Obama.)

DeVos’ proposed changes have been widely applauded by conservatives and cautiously embraced by many liberals as well, including Emily Yoffe in a Sept. 4 article in TheAtlantic. DeVos, Yoffe and others have expressed concern that the rights of accused men are given short shrift.

Specifically, the Obama guidelines required what is tantamount to a “preponderance of the evidence” standard for adjudicating these cases. By contrast, criminal law requires the more strict “beyond a reasonable doubt” standard for conviction. DeVos and others support the higher standard, along with a much more circumscribed definition of proscribed behavior. The Obama standards, they argue, are far too subjective and create an atmosphere of fear and uncertainty on campuses. Prior to the Obama guidelines, many colleges split the difference and used a “clear and convincing” standard, which requires a 75 percent likelihood of guilt (although how that 75 percent is determined is an open question).

DeVos and other critics conflate two very different matters, and their conflation, intentional or not, misses the point entirely.

Of course men and boys accused of sexual misconduct deserve a fair process. But invoking the standards for criminal conviction when addressing campus misconduct is a grave category error.

The evidence seems clear. Whether one believes the “1 in 5 women are victims” claim of the Obama era or not, most assault and harassment incidents are not reported because women fear, rightly, that justice is elusive. The evidence also supports the reliability of the reports that are made. A 2014 White House report assessed that only between 2 percent and 10 percent of claims turn out to be false. A college campus is, in part, a sanctuary where young women in particular are the ones deserving the benefit of doubt.

But the real conflation rests in context. A college or university has a different responsibility to its community than the criminal standard acknowledges. Many critics say colleges are ill-equipped to adjudicate such matters and should just turn all cases over to the police. It is not either/or. It may be both/and, as a college may both take disciplinary action and report the incident to the police.

Colleges have a right — an obligation — to investigate and act on behavior that violates the community, whether or not that behavior constitutes a criminal act. While they may not have the resources, skills or ambition to prove “beyond a reasonable doubt,” they also lack the authority to impose criminal penalties. Their most severe sanction is to remove a student from the community — an admittedly serious consequence, but not equivalent to a criminal conviction.

Those who complain that the consequence is so severe that the protection of criminal law must be in place are conveniently ignoring many other actions schools and colleges take, based on their own mission and standards. In many charter schools, for example, children are expelled for failing to stand straight in a line, or for a few violations of a strict, punitive dress code. Colleges often expel students for one incident of academic dishonesty. Teachers and professors can lose a job because of one bad joke, as happened in a New York City private school last year. None among those disciplinary actions requires anything close to a criminal standard of proof. In fact, in many cases, the accused has few or no rights at all.

A small book could be filled with minor infractions that can lead to dismissal from enrollment or employment. But now we must protect aggressive men in colleges because we fear they are vulnerable victims of the overzealous, politically correct #MeToo movement?

The same category error is made when conservatives and self-appointed First Amendment cops bemoan the very occasional retraction of an invitation to a far-right pot-stirrer like Milo Yiannopoulos or Ann Coulter. You’d think the colleges were burning the Constitution in the chapel. Here too, they conflate the issue. Yiannopoulos and Coulter can set up their crude soapboxes on any corner outside the campus and spew their bile and enjoy full constitutional protection. But they have no such right to impose their ugly rhetoric on a college campus, where civility and honest discourse are among the declared values.

And that’s the issue in a nutshell. The Constitution and its provisions to protect speech and provide the presumption of innocence to the accused are critically important. They are especially important when tested by those who forcefully impose their will on others, through offensive speech or behavior. The Constitution guarantees the right to be offensive.

A college need offer no such guarantee.

Steve Nelson lives in Boulder, Colo., and Sharon. He can be reached at stevehutnelson@gmail.com.