As this year's presidential election was fought out, some of the biggest hot-button topics had to do with culture wars involving college campus politics and sexual misconduct. Those two issues dovetail in our cover story about big sea changes happening right now at most American colleges, largely unseen and unreported. They have to do with new federal Title Nine rules dictating how sexual assault claims must be handled. And while nearly everyone seems to agree the old policies fell short, there’s a serious divide on the new approach. Today, we investigate the search for Justice for All.
When college campuses opened this fall, they were required to do it with brand with new policies when it comes to investigating sexual misconduct and the rights of the accused.
Sharyl: What was going on college campuses in your view that was in need of fixing?
Tyler Coward: The rules put in place oftentimes neglected a appropriate due process measures to ensure the fundamental fairness of these disciplinary proceedings.
Tyler Coward is with the Foundation for Individual Rights in Education, a due process rights group, and supports the new changes.
Sharyl: What happens in some cases that may have been improper?
Coward: One of the most prominent system for investigating allegations of sexual harassment and sexual assault was the so called single investigator model. They served as judge, jury, and essentially executioner, in some instances where, in our legal system, we don't task anybody with all those roles.
Title IX was originally passed in 1972. It requires federally-funded colleges and universities to investigate sexual misconduct.
48 years later, advocates say sexual assault on campus remains common and often unreported and the systems designed under Title IX broken.
A survey of 33 large universities published last year found one in four women said they were sexually assaulted as students. Fewer than one in three said they filed a report or sought help from their schools.
But there’s also growing concern over fairness to the accused. The Obama administration issued broad guidance that lowered the standards to decide guilt in campus sexual misconduct cases. A flurry of lawsuits filed by young men claimed their rights were violated.
One high profile case came in 2014. Rolling Stone published “A Rape on Campus” about a fraternity gang rape and mishandled investigation at the University of Virginia. The story soon fell apart. The frat and a college administrator were awarded millions after Rolling Stone and writer Sabrina Erdely were found guilty of defamation.
Sara Collina is a gender justice activist and adjunct professor at Georgetown University.
Sharyl: What is your understanding of how things stood before the most recent changes?
Collina: We had a problematic, confusing system that did not work very well. Since the regulations, we have a slightly more problematic, difficult system, that doesn't work very well.
Collina criticizes a rule change that gives both parties including the accused the right to have a representative question the other side and examine the evidence.
Collina: Cross examination is one of the issues that is required and is not negotiable. President Trump made it clear that he wanted to pass regulations that would make it harder for people to succeed in a Title Nine complaint. And he's done that. That's exactly what all it does. It discourages people from coming forward. It makes it a little bit harder. It doesn't in any way, help the process be more fair to anybody.
Sharyl: Why do you think so many academics and activists insist that the new rules are going to make it much harder for legitimate victims to have their cases fairly heard?
Betsy DeVos: Well, I mean, I think it's just a false narrative.
Education Secretary Betsy DeVos ordered the Title Nine changes in May.
Sharyl: When it comes to Title IX, if you could explain in simple terms, what did the Obama rules do that you feel needed fixing?
Betsy DeVos: It resulted in an unjust approach that was, in many cases, and I think accurately so-called kangaroo courts. We had dozens and dozens of court cases that found the school did not respect due process rights, the presumption of innocence, many cases that were overturned. And it was a massive overreach to advance a very left wing agenda.
Sharyl: What is an example or a couple of bullet points of the rule changes that you think will fix that?
Betsy DeVos: Well, first of all, we're very clear about the importance of respecting due process rights, the right to understand what the allegations are, the right to submit evidence, the right to read the evidence from the other party, the right to cross examine, though not in person, not face to face, and the whole package of due process protections that are important. And then also the presumption of innocence, starting from a point where we don't immediately anticipate that the alleged perpetrator is guilty.
DeVos argues the Title IX rule changes also include sweeping new protections for victims and hold colleges accountable if they fail to protect students.
The feds recently required reforms at schools faulted in several notorious cases.
In September 2019, the Education Department fined Michigan State University $4.5 million. That after Professor Larry Nassar, an Olympic gymnastics team doctor, assaulted hundreds of women and girls over more than 20 years. He’s now in prison.
In February, a Title Nine investigation uncovered lapses at the University of Southern California involving campus gynecologist George Tyndall. USC agreed to pay $215 million to former student patients who accused Tyndall of abuse or assault over three decades.
And in March, the Education Department found Penn State University failed to protect students in the Jerry Sandusky scandal. He’s the football coach now serving decades in prison for sexually abusing boys at an at-risk charity he started.
But Collina insists a main focus of the new Title Nine rules, protecting rights of the accused is misplaced.
Collina: If Secretary DeVos was really concerned about this issue, she would look at the problems that we have and see that false accusations, made up accusations, to maliciously coroner someone. If you go to campus, that's not the problem we have.
Senior Katarina Watson acts as a “peer mentor” for a new student-designed course Collina now teaches at Georgetown. “Title Nine for a New Generation.”
Sharyl: If you could say what you hope people would leave this course with what information or what takeaway just in a sentence or two, what would you say that is?
Katrinia Watson: I would say not only a general understanding of title nine and consent and all the processes that come before and after that, but also like a hunger for spreading that knowledge and also building upon it.
Amid disagreement over Title Nine changes, all are sorting through what the new policies mean in practice.
Collina: I'm not fighting to return to what we had. I mean, the truth is, is that we had, wasn't really working either. So we're asking students and students are asking each other, what would it look like if we did it right?
DeVos: This is a very fair and just process. And a suggestion that we should do something differently, I'd like to hear what they think should be done differently. Should we throw out due process? Should we presume that every individual that's alleged to be a perpetrator is guilty? I mean, what is their solution? There is none, because I mean, these are bedrock principles on which our country was founded.
Sharyl (on camera): Schools across the country are still tweaking their Title IX policies.