After months of hemming and hawing, the DoEd's new guidance for Title IX sexual assault and harassment investigations has been released, and advocates on both sides are in an uproar, mostly about the two major provisions of the proposal.
The first is one that courts have repeatedly mentioned in overturning Title IX disciplinary procedures; given that Title IX discipline really is something that can follow a person for most of his life, Sixth Amendment protections (as well as others) apply, and the accused has the right to confront the evidence arrayed against him. Agreed. On the same side, victims' advocates note that the Title IX structure does not provide adequate guidance to prevent cross examination from becoming a re-victimization. Also agreed.
The second major issue is the question of which offenses ought to be investigated by universities; whether it should be just those which occur on campus, or whether off-campus offenses involving students ought to be dealt with as well. The logic on the part of the critics is that off-campus offenses involving students will impart a sense of fear among victims and their friends if they are not dealt with. Agreed as well.
In other words, the debate about DeVos's recommended policy changes has everything to do with whether universities are actually capable of investigating these things, and advocates for victims ought to be sobered in that regard by how badly many schools, especially my alma mater, have done in this regard. So is the solution to retain Obama-era guidelines that are almost sure to be overturned in court sooner or later?
I think not. Rather, once again, the solution here is for universities to put the onus on local police forces to actually do their job and investigate these allegations, and to have simple rules students can follow. If you're convicted of sexual assault or stalking, you're expelled. If you're indicted, you're suspended until the matter is resolved--and if you're exonerated, you retain the right to pick up your studies right where you left off. If you're arrested, you're suspended until you are either indicted or exonerated.
If you're a victim, you have the right to understand that your university will do the above, and if you file a police report, you have the right to, with the university's assistance, transfer to another equivalent school without losing academic standing or credits.
Chances of the above becoming law; slightly less than zero, I'd guess, because too many jobs are at stake in the matter. Title IX is, in my view, simply an attempt to co-opt the behavior codes schools used to enforce, but with quasi-legal authority. I predict a lot more hullaballoo and a lot more people suffering because we refuse to treat sexual assault as the criminal matter that it is.
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