COLLEGES BRISTLE As Judges, DeVos Push Protections (Or as SOS Calls It, Due Process) For The Accused
Education Secretary Betsy DeVos’ proposed Title IX regulations, which are due to be issued in final form early next year, seek to require colleges that adjudicate claims of sexual assault against their students using some of the same procedures to ensure fairness that have long been treated as fundamental by courts. The most important provisions would require colleges to hold hearings at which a representative of each party has a right to cross-examine witnesses, including the other party, and to provide both students with all evidence gathered in the investigation.
But these proposals have generated furious opposition from pro-complainant activists and politicians willing to perpetuate the biases against accused students – procedures initiated by the Obama administration. The high court has called the right to cross-examination “the greatest legal engine ever invented for the discovery of truth.” Yet Sen. Patty Murray, the ranking Democrat on the Senate HELP Committee, is leading the effort to neuter the regulations’ cross-examination provisions. Largely ignored by most news media have been the scores of judicial decisions in the past few years more in tune with the DeVos push for fairness than with the pro-accuser approach now used by most campuses and favored by most activists and politicians.
A decision last week by U.S. District Judge Mary McElroy, an Obama nominee, is the latest example. She cleared the way for a former student at Johnson & Wales University in Providence, R.I., to receive a trial and seek to convince a jury of his claim that the university unfairly denied him the opportunity to question witnesses. Judge McElroy’s decision will focus the trial exclusively on whether Johnson & Wales handled the case so unfairly as to violate its contractual promise to be fair to accused students. The spirit of her ruling was similar to that underlying DeVos’ proposed Title IX rules.
This spring, U.S. District Judge Alfred Covello ruled that former Yale basketball captain Jack Montague was entitled to move forward with a claim that Yale’s proceedings against him “deprived him of basic fairness.” Yale settled the lawsuit rather than face a trial.
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CBSNEWS DOC: How Betsy DeVos plans to change the rules for handling sexual misconduct on campus
