Two of the biggest bugaboos plaguing American colleges — censorship and the dearth of due process in student disciplinary hearings — will soon be under the microscope in Washington.
Education Secretary Betsy DeVos appointed Adam Kissel to the post of deputy assistant secretary for higher education programs June 6. Plucked from the Charles Koch Foundation, Kissel formerly served as a vice president at the Foundation for Individual Rights in Education, a nonpartisan student rights group that has backed both conservative and liberal litigants in battles with college administrators.
Hailed as a “First Amendment crusader” by the libertarian Reason magazine, Kissel has written extensively about free speech and due process issues. His appointment could signal a seismic shift in how the U.S. Department of Education will interpret Title IX, the federal law guaranteeing gender equality.
The education department’s Office of Civil Rights requires all colleges and universities that receive federal funding to investigate reports of sexual assault and sexual harassment and hold disciplinary hearings. While schools are arguably equipped to weigh harassment claims, which would be civil matters in an off-campus setting, rape and sexual assault are violent crimes.
Disciplinary proceedings run parallel to police investigations, but while law enforcement officers are skilled in collecting evidence and interviewing victims, suspects and witnesses, college bureaucrats simply don’t have the training and expertise to perform these vital duties. What results are bungled, amateur investigations and farcical hearings that are rightly compared to kangaroo courts.
In many public and private institutions, including our own Barton College, students accused of misconduct are forbidden from hiring attorneys to represent them. Students can be exonerated in the criminal justice system but found “responsible” for sexual assault in campus disciplinary hearings.
Increasingly, students are suing their alma maters for failing to provide them with due process and recklessly branding them rapists. Students at UNC Charlotte and Davidson College have even contemplated defamation suits against their accusers, The Charlotte Observer reported last week.
Colleges have an obligation to protect those who report sexual assault, but they also must provide procedural fairness to the accused. Current federal regulations, including a 2011 mandate that institutions use the weakest standard of proof in discipline hearings, make it impossible to do both.
Kissel would be wise to advocate for reform that limits the scope of college hearing panels to non-criminal allegations. Sexual assault is a serious matter for police, prosecutors, judges and juries to weigh. Provosts, professors and deans are hopelessly out of their depth.
The new cop on the college beat is also likely to take a dim view of campus speech codes that squelch social and political expression. In his role at FIRE, Kissel was a fierce advocate for free-speech rights.
Many have regarded DeVos with skepticism and even scorn since President Donald Trump appointed her to oversee the education department. However, she deserves applause for naming a veteran scholar with an unassailable record on free speech and due process to enact much-needed reforms in higher education.