Michael Q. McShane

On Friday, Secretary of Education Betsy DeVos rescinded a “Dear Colleague” letter that the Obama administration had issued in 2011 detailing how universities should handle accusations of sexual assault. The Department will open a period of public comment on the issue and draft new rules in the coming months.

The Obama administration’s guidelines had come under criticism as more and more individuals accused of sexual assault came forward to argue that their due process rights were being violated.

The “Dear Colleague” letter (and subsequent communications by the Department of Education) offered several bits of problematic guidance. First, the letter directed universities to follow what is called a “single investigator” model when pursuing these claims, meaning that a university employee would, as Emily Yoffe of the Atlantic wrote, act as “detective, prosecutor, judge, and jury” for the case. There is a reason why we separate those responsibilities in our court system.

Standard rules of evidence that we would expect any court of law to follow did not have to be followed. Because of the opaque nature of these investigations, those accused did not have a right to submit evidence on their own behalf or cross-examine witnesses or experts. In fact, those accused of these crimes did not even have to be notified of the specific complaint against them. It was a recipe for disaster.

At the core of all investigations is the balance between the rights of the accused and the rights of the accusers. As both Yoffe and Robby Soave of Reason.com have documented in heartbreaking detail, current processes have failed both of these groups. Due process helps to ensure that the guilty are punished and that the innocent are not. With an issue as serious as sexual assault, it is that much more important that fair and transparent procedures are followed. Let’s hope that this period of public comment brings them back into balance.

About the Author

Michael McShane
Senior Fellow of Education Policy

Mike McShane is Senior Fellow of Education Policy for the Show-Me Institute. He is a former high school teacher and earned his PhD in Education Policy at the University of Arkansas. Before coming to the Show-Me Institute, Mike worked at the American Enterprise Institute as a research fellow.