Rather than inviting everyone to the table, the Department insisted it knew better than those who walk side-by-side with students every day. That will no longer be the case.
The era of "rule by letter" is over.
Through intimidation and coercion, the failed system has clearly pushed schools to overreach. With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.
This unraveling of justice is shameful, it is wholly un-American, and it is anathema to the system of self-governance to which our Founders pledged their lives over 240 years ago.
There must be a better way forward.
Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined.
These are non-negotiable principles.
Any failure to address sexual misconduct on campus fails all students.
Any school that refuses to take seriously a student who reports sexual misconduct is one that discriminates.
And any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination.
A better way begins with a re-framing.
This conversation has too often been framed as a contest between men and women or the rights of sexual misconduct survivors and the due process rights of accused students.
The reality is, however, a different picture.
There are men and women, boys and girls, who are survivors, and there are men and women, boys and girls who are wrongfully accused.
I've met them personally. I've heard their stories. And the rights of one person can never be paramount to the rights of another.
A better way means that due process is not an abstract legal principle only discussed in lecture halls.
Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.
The notion that a school must diminish due process rights to better serve the "victim" only creates more victims.
A better way also means we shouldn't demand anyone become something they are not.
Students, families, and school administrators are generally not lawyers and they're not judges. We shouldn't force them to be so for justice to be served.
A better way is also being more precise in the definition of sexual misconduct.
Schools have been compelled by Washington to enforce ambiguous and incredibly broad definitions of assault and harassment.
Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes.
Any perceived offense can become a full-blown Title IX investigation.
But if everything is harassment, then nothing is.
Punishing speech protected by the First Amendment trivializes actual harassment. It teaches students the wrong lesson about the importance of free speech in our democracy.
Harassment codes which trample speech rights derail the primary mission of a school to pursue truth.
A better way is ultimately about recognizing that schools exist—first and foremost—to educate. Their core obligation under Title IX is to ensure all students can pursue their education free of discrimination.
Schools tend to do a good job, as they should, of making appropriate accommodations that don't infringe on the rights of others.
While a Title IX complaint is pending, schools usually make academic accommodations such as adjusting schedules, changing dorm assignments, and postponing papers or exams.
But there is a fundamental difference between making these sorts of accommodations for accusers—and schools which seek to punish the accused before a fair decision has been rendered.
There is a competency gap here.
Washington has insisted that schools step into roles that go beyond the mission of these institutions.
This doesn't mean schools don't have a role. They do. But we should also draw on medical professionals, counselors, clergy, and law enforcement for their expertise.
And so, a better way includes pursuing alternatives that assist schools in achieving justice for all students.
In order to ensure that America's schools employ clear, equitable, just, and fair procedures that inspire trust and confidence, we will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way.
We will seek public feedback and combine institutional knowledge, professional expertise, and the experiences of students to replace the current approach with a workable, effective, and fair system.
To implement sustainable solutions, institutions must be mindful of the rights of every student. No one benefits from a system that does not have the public's trust—not survivors, not accused students, not institutions and not the public.
Other groups have already made progress on these difficult issues.
The American Bar Association established a task force comprised of lawyers and advocates from diverse backgrounds and varying perspectives.
They found consensus and offered substantive ideas on how we can do better. Schools should find their recommendations useful.
The American College of Trial Lawyers also gathered experts from across the country to produce reasonable responses to the current failed system.
An open letter from Harvard's law school faculty provides important perspectives and insights that will be helpful as we pursue a better way.
Another promising idea comes from two former prosecutors, Gina Smith and Leslie Gomez.
Both of them have spent their careers specializing in sexual misconduct cases. They propose a "Regional Center" model; and it is being explored by a number of states today.
The model sets up a voluntary, opt-in Center where professionally-trained experts handle Title IX investigations and adjudications.
It looks something like this: in partnership among states and their Attorneys General, participating schools refer to the Center any Title IX incident which rises to a criminal level.
The Center cooperates with local law enforcement and has access to resources to collect and preserve forensic evidence, facilitate—but never require—criminal prosecutions, and apply fair investigative techniques to gather and evaluate all relevant evidence to determine whether sexual misconduct occurred.
This insures that students are not charged by school-based tribunals on the basis of hearsay or incomplete evidence.
This model allows educators to focus on what they do best: educate.
These are only a few examples that allow for a more effective and equitable enforcement of Title IX.
Our interest is in exploring all alternatives that would help schools meet their Title IX obligations and protect all students. We welcome input and look forward to hearing more ideas.
Schools have an opportunity to help shape and improve the system for all their students. But they also have a responsibility to do better by their students.
This is not about letting institutions off the hook. They still have important work to do.
A survivor told me that she is tired of feeling like the burden of ensuring her school addresses Title IX falls on her shoulders.
She is right. The burden is not hers, nor is it any student's burden.
We need to act as if any of these students were one of our own loved ones.
One young woman made this clear to me when she told me her story of the failed system. Both as a falsely accused student, and as a survivor.
She had recently gone through a bad break-up with her boyfriend.
Another female student, one of her close friends, sought to console her—except in all the wrong ways. The friend showed up and made an unwanted sexual advance. Upset about being rejected by the heartbroken student, the young woman who was supposed to be there as a friend, instead turned a lighthearted gesture into a full-scale Title IX incident.
Shockingly, the school punished the student who only needed a friend after a break-up. This student then revealed to me that she had been sexually assaulted earlier in life.
"I've been on both sides of this issue," she told me, "and on neither side did they get it right."
We can and must get it right for her, and for all students.
We must continue to condemn the scourge of sexual misconduct on our campuses.
We can do a better job of making sure the handling of complaints is fair and accurate.
We can do a better job of preventing misconduct through education rather than reacting after lives have already been ruined.
We can do a better job of helping institutions get it right.
And we can do a better job for each other.
The truth is: we must do better for each other and with each other.
More Articles
- Justice Department Releases Report on its Critical Incident Review of the Response to the Mass Shooting at Robb Elementary School in Uvalde, Texas
- A Proclamation on National Stalking Awareness Month, 2024 From Joseph R. Biden Jr.
- Director Allison Randall of the Office on Violence Against Women Delivers Remarks at the Launch of the National Plan to End Gender-Based Violence
- Office on Violence Against Women Announces Awards to 11 Indian Tribal Governments to Exercise Special Domestic Violence Criminal Jurisdiction
- US Presidential Debates: Three Studies Journalists Should Know About (And The Public!)
- Speaker of the House Nancy Pelosi And Donald Trump Last Year
- Remarks by President Obama on Research for Potential Ebola Vaccine, December 02, 2014
- Legislative Update: "Safe to Report" Policy in Armed Forces, Parental Involvement Leave, Maternal Health Crisis, Work Opportunity Tax Credit for Military Spouses & Toxic Navy Plume
- Who Was Schuyler Colfax? Sitting Presidents & Vice Presidents Who Have Testified Before Congressional Committees
- The Bodleian Library and Worldmapper Create a Cartogram Depicting Trump's Tweets and Countries that Dominate US President's Foreign Policy