What Jeff Sessions Can Learn From Betsy DeVos

What if Justice considered the rights of the accused as much as Education does?

Betsy DeVos (Photo by Chip Somodevilla/Getty Images)

Last week, Betsy DeVos, our Secretary of Education, gave an address announcing changes to the federal approach to how colleges should handle allegations of sexual assault on campus.

How, exactly, colleges should handle these cases wasn’t presented in DeVos’s speech. If it was a movie preview, it was the kind where you don’t actually learn anything about the plot of the movie; you just get random snippets of very dramatic scenes. She did, though, make it very clear that the way these are handled now doesn’t work.

I think she’s right about that — my firm represents students in these cases — change needs to come; no one is served by the current system.

But, while we’re waiting to see what the change will be, there’s a broader point about how we, as a society, treat people who are accused of something serious and bad.

Consider these quotes from her speech, for example:

There is no way to avoid the devastating reality of campus sexual misconduct: lives have been lost. Lives of victims. And lives of the accused.

. . .

Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined.

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Or this summary of the national conversation about how schools should handle sexual assault cases:

This conversation has too often been framed as a contest between men and women or the rights of sexual misconduct survivors and the due process rights of accused students.

The reality is, however, a different picture.

There are men and women, boys and girls, who are survivors, and there are men and women, boys and girls who are wrongfully accused.

I’ve met them personally. I’ve heard their stories. And the rights of one person can never be paramount to the rights of another.

A better way means that due process is not an abstract legal principle only discussed in lecture halls.

Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one.

More than just the quotes, her speech was peppered with stories of injustice and unfairness to people accused of sexual assault on campus — as well as stories about those who were assaulted.

I found it a refreshingly balanced and compassionate speech.

Imagine if the Attorney General were to talk like this. It would be a different world if more government officials involved in punishing people displayed this much empathy for people accused of wrongdoing.

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The Secretary of Education and the Attorney General do, of course, occupy different roles. The Department of Education doesn’t directly prosecute sexual assault charges; it regulates how schools do that. The Attorney General leads the agency that directly puts people in prison.

And, of course, the population accused is different in each scenario. The government has a different relationship to its adult citizens than a school has to its students; we recognize that college students are in a place of reduced maturity. Compassion is easier toward the young.

There’s a perception that DeVos only drew attention to this issue — that she only cares about this — because rich white students advocate around this. For example, in the Washington Post’s page with the transcript of her remarks, some dude named Jack Obeen commented that “Wow, the date rape lobby must be more powerful than I thought. I guess all the sons of our great upper class have a lot of disposable income. Betsy DeVos: Making Rape Great Again.”

If your mental image of a person accused of sexual assault on campus is, say, Brock Turner, you can see why a person would say that. Though as Emily Yoffe points out in an important piece in the Atlantic, there’s a lot of reason to think the reality on the ground is very different, that most men accused of campus sexual assault are, in fact, people of color. DeVos’s speech itself calls out the story of one first generation college student who was railroaded by his school. Our firm has represented students of color pro bono who have been treated incredibly poorly.

I tend to think that DeVos had compassion for the accused not because she likes rich white people — though she likely does — but, rather, because she sat down with the families of people who have been accused of sexual assault on campus. More often than it brings contempt, familiarity brings understanding.

That’s why many criminal defense lawyers take the view that if your client can cooperate with the government (because of his or her attitude toward the case and willingness to plead), it makes sense to sit down with the AUSA and proffer, even if what the person is going to say may not be enough to get credit off his or her sentence.

If the AUSA knows the person accused of a crime better, mercy is easier.


Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com He’d love to hear from you if you’re inclined to say something nice.