Democrats for Campus Fairness
“There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” — Former Supreme Court Justice Ruth Bader Ginsburg
The Biden Administration’s transition team reportedly is moving ahead to implement Biden’s campaign promises. Two post-election articles in the New York Times and Washington Post reveals the plans for the Department of Education. The WaPo article notes:
“Another huge target: a Title IX regulation giving students accused of sexual assault more due-process rights in investigations. This would require formal regulations or legislative action.”
Such a move would represent a repudiation of the long-standing Democratic commitment to due process and fairness for all.
A recent YouGov poll shows a supermajority of Democratic (and Republican) voters support due process on campus:
The new Title IX regulation is benefiting complainants as well as the accused — see article, below, from Newsweek magazine. Leading Democrats such as former Virginia governor Douglas Wilder have expressed strong support for the regulation.
Democrats for Campus Fairness calls upon president-elect Biden to support long-standing principles of due process and fairness, and to uphold, not rescind, the new Title IX regulation.
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Title IX Reforms Will Restore Due Process for Victims and the Accused
Buddy Ullman
June 12, 2020
Secretary of Education Betsy DeVos has released new Title IX regulations that radically change how gender sexual harassment and sexual assault disputes are resolved on college campuses. This is a good thing. I am a liberal Democrat, feminist and advocate for Title IX and women’s issues, but the way these disputes have been adjudicated on college campuses using Obama-era administrative guidance has been catastrophic. Those guidelines, encompassed in a 2011 “Dear Colleague” letter, are vague, imprecise, constitutionally and legally dubious and patently unfair toward the accused, contributing to investigation outcomes that are unreliable and too often erroneous. There have been more than 600 court cases filed by accused students challenging unfavorable Title IX rulings, with the majority of the judicial decisions supporting the plaintiffs and scores of additional cases settled favorably prior to judgement.
I am a former faculty member at the Oregon Health & Science University in Portland who personally experienced Obama-era Title IX compliance guidelines. Although Obama-era guidance was well-intentioned to combat the deliberate indifference that colleges traditionally displayed toward female students with sexual misconduct complaints, its implementation by amateurish Title IX offices has been a national debacle that has failed accusers and accused alike for the past decade.
During my ordeal, I was not allowed to know the allegations against me, the names of the complainant or her witnesses, have my own witnesses, present evidence on my behalf or defend myself in any way—and I was gagged throughout. Free speech, due process and truth-finding were out the window, and the preordained outcome was unfavorable. I was to learn a year later that the accusations against me were fabrications. The DeVos regulations will eliminate such injustices.
The DeVos rule affords a meticulous and comprehensive framework for Title IX enforcement that promotes free speech and due process and restores fairness, equitability and credibility to these quasi-judicial campus proceedings.
There are many improvements, but the most significant, as well as the most controversial, is the requirement for direct, oral and real-time live hearings that enable cross-examination of all parties, including witnesses, to a complaint. This obligated cross-examination comes with reasonable and well-considered caveats to minimize discomfort and inappropriate interrogation of all participants, including rape-shield protections for the accuser/victim, provisions to require indirect testimony through a surrogate of each party’s choice, pre-approval of all propounded questions by the neutral decision-maker and sequestration of parties in separate rooms, upon request.
Cross-examination is widely considered to be the greatest single legal engine ever conceived for the discovery of the truth. Because the ultimate goal of any investigation is to ferret out the truth, cross-examination offers an enormous improvement to the fact-finding process of the previous paradigm. It is iniquitous to rob a Title IX decision-maker of the most effective investigative tool in her/his armamentarium, as DeVos reform opponents are now trying to do. Cross-examination and live hearings promote transparency, winnow out false, frivolous, and unreasonable allegations and maximize the integrity of an investigation—compared to the clandestine model employed in the past, in which testimony was behind closed doors. The new paradigm will benefit victims and accused alike.
It is also important to note that Title IX only applies to less than six percent of American women. If a sexual assault complaint is filed by a woman in the community (i.e., off-campus), she voluntarily acquiesces to cross-examination in a courtroom because it is mandated by the Sixth Amendment of the U.S. Constitution. Permitting a supplementary and inferior fact-finding mechanism for resolving Title IX disputes for which only a small minority of women is eligible is inequitable and unfair.
Furthermore, despite arguments by opponents of Title IX reform that a victim of sexual assault is disadvantaged by live hearings, most lawyers and reasonable people would assert that a victim is in the superior position in such a setting. Cross-examination and live hearings are an opportunity, not a shortcoming, for any violent crime victim.
Sexual assault and rape are unspeakable acts of violence and victimization that rob women of their power. Filing charges and facing down their perpetrators in safe surroundings, such as live hearings, provides victims with the occasion to regain that power. No survivor should be denied that prospect. There is no better mechanism to return that power than through confrontation of the perpetrator in a live setting. Denying a sexual assault victim that opportunity is wrong.
Buddy Ullman is a former professor of biochemistry and molecular biology from the Oregon Health & Science University.