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Michael Swartz / Jul. 21, 2017

Campus Rape: Revisiting the 'Dear Colleague' Letter

When dealing with sexual assault, Education Secretary Betsy DeVos is working to bring Rule of Law back to college campuses.

Responding in 2011 to a false narrative that sexual assault on college campuses was out of control, Russlyn Ali, at the time the assistant secretary for civil rights in Barack Obama’s Department of Education, penned what became known as the “Dear Colleague” letter. It was a 19-page “significant guideline document” for colleges and universities to follow, but its major effects on campus life were to make it extremely difficult for a student accused of sexual assault to defend himself and to lower the standard required for disciplinary action to a simple preponderance of the evidence. Even with the reduced standard (or perhaps because of it), campus rape incidents continued to make headlines, including fake news like the University of Virginia story retracted in 2014 by Rolling Stone.

One of many lawsuits resulting from the “Dear Colleague” letter was filed last year by a recently graduated law student from the University of Virginia (not connected to the Rolling Stone case), while another case was settled earlier this year after it was revealed that the accuser was upset because the defendant stopped dating her. By this time, though, the accused had long since been expelled from the school; details of the settlement were unavailable.

And while states like California and New York developed affirmative consent laws intended to make sure that, if things became physical, both parties knew what they were getting into, the problem arises when alcohol becomes involved and one or both participants no longer are in a position to give informed consent or stop the process.

As The New York Times reported, Candice Jackson, who is the acting head of the Department of Education’s civil rights division (a successor to Russlyn Ali), opined that “the accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was just not quite right.’”

Jackson has since apologized for the “flippant” tone of the remarks, but no apology will ever placate a hardcore leftist who’s been triggered. According to on such unhinged leftist, Sen. Patty Murray (D-WA), Jackson “crossed a serious line and highlighted her clear biases in this area in a way that … should disqualify her from service in the position of top Department of Education protector of students’ right to be safe at school.” While Jackson may have exaggerated the number to some degree, it’s far closer to the truth than the Left’s oft-repeated lie that “one in five” women on campus are sexually assaulted.

The senator also leaves out the context of other statements made by Jackson to the Times. She noted the investigative process has not been “fairly balanced” between accuser and accused in recent years, and that students are deemed rapists “when the facts don’t back it up.” In fact, she said, sometimes there’s “not even an accusation that these accused students overrode the will of a young woman.” But Murray, as a senator who will eventually vote on her confirmation, is one of those who holds the fate of Candice Jackson in her hands.

And while Murray was a vociferous opponent of Education Secretary Betsy DeVos, it’s DeVos who is considering revisiting the subject of campus sexual assault and due process as “an issue we’re not getting right” after six tumultuous years. But DeVos isn’t just writing a long letter and making it stick — she’s out speaking with several of the parties involved, including rape survivors, college administrators, and — gasp — even those who were wrongly accused.

Some would like things to go even more quickly. David French, writing at National Review, suggests the “Dear Colleague” letter be immediately rescinded and colleges be compelled to turn these matters over to the civil and criminal court systems already in place. This would certainly be an improvement in due process for both parties, although aggrieved leftists will surely howl that this restoration of due process will have a “chilling” effect on victims reluctant to tell their stories.

The failure of the current system, however, means that something has to be done. While sexual assault is a problem on campus, there was already in place a lawful means of handling the issue. The problem was that victims were reluctant to put themselves through the process, and schools were fearful of the prospect of negative press from such proceedings. But preserving the rights of the accused and maintaining the presumption of innocence until being proven guilty — even if only by a standard of “clear and convincing evidence” common in civil trials — should be the standard. Let’s hope DeVos can make it right again.

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