Why I support DeVos’ new direction on sexual assault.

Sexual assault is a huge problem, and college campuses are seemingly Ground Zero. If we’ve learned anything from recent revelations at Penn State and Baylor and the University of Tennessee and even Stanford, it’s that the handling of sexual assault claims on college campuses has been wrought with negligence, at best, and conspiracy to cover up crimes in the interest of protecting institutional reputation. Time after time, we’ve heard of “hostile sexual environments” on campus. The system has failed numerous victims, and the culture on college campuses as a collective hasn’t changed much.

These are the reasons pretty much everyone is expressing outrage over the U.S. Secretary of Education Betsy DeVos’ efforts to reform sexual assault adjudication on campuses across the country. One of the most notable changes DeVos will push, as evidenced by her early remarks on the subject and the Q&A released by the department today, is an emphasis on protecting the rights of the accused.

And that is exactly why I’m on board with the proposal. Or, at minimum, I’m still holding strong to my “let’s just wait and see” approach.

At first glance, the idea of protecting the rights of the accused appears to be a step which “will turn back the clock to a time when victims were silenced,” as Rep. Bobby Scott (D-VA), Ranking Member on the House Committee on Education and the Workforce” said in a statement today.

Remember Brian Banks, the linebacker who missed out on a USC football career — and probably a real chance at a professional playing career — after he was falsely accused and convicted of rape in 2003? He was expelled from school, missed college, spent five years in prison and another five years on strict custody parole. And then, his accuser finally admitted she’d made the whole thing up in 2012. A judge awarded him a $2.6 million judgment in 2013, which doesn’t hardly seem like sufficient compensation for what he lost.

In the conversation about victims rights, the number of people who are falsely accused is often not discussed. However, research has shown that a disproportionate number of these individuals are black men, like Banks. Harvard Law Professor Janet Halley wrote in a 2015 article for the Harvard Law Review, “From Emmett Till to the Central Park Five, American racial history is laced with vendetta-like scandals in which black men are accused of sexually assaulting white women that become reverse scandals when it is revealed that the accused men were not wrongdoers at all.”

“One of the most dangerous effects of the U.S. Department of Education Office for Civil Rights (OCR) campaign to force institutions of higher education to take sexual harassment and sexual assault on campus more seriously is the idea — vividly manifested in the institutional reforms adopted at Harvard University last summer the Harvard Title IX Office, dedicated exclusively to enforcing the University’s new rules on sexual and gender-based harassment, has no mandate to ensure racial equality,” Halley wrote.

“Case after Harvard case that has come to my attention, including several in which I have played some advocacy or adjudication role, has involved black male respondents, but the institution cannot ‘know’ this because it has not been thought important enough to monitor for racial bias,” she continued.

The Atlantic recently ran an article which cites Halley’s work but also includes interview after interview with experts who speak on the racial biases in the system.

Halley suggested, “The best way to correct for this, in my view, is to reduce the Title IX Office to a compliance-monitoring role, and get it out of the business of adjudicating cases.” Which is exactly what DeVos is proposing.

I have very close family members and friends who have been victims of rape, in some cases repeatedly assaulted by individuals they knew and trusted. And DeVos’ stance acknowledges the system has terribly failed them, and she vows reforms which will serve victims better, too.

But I’m not convinced this is an either-or proposition. I think we can both protect and do a better job of finding justice for victims of sexual assault and protect and do a better job of providing due process for those who are accused as well. And I’m hopeful, though I realize no one looks to Betsy DeVos for any type of fairness on racial issues, that a stance which seeks to correct a system which disproportionately targets black men will provide exactly that.

I can’t say for sure the department will get this right. But I also can’t say they’ll get it wrong, and based on what I’ve read in the preliminary Q&A released today, I am still taking the “let’s just wait and see” approach.