Education Secretary Betsy DeVos scrapped Obama-era guidance on how campuses handle sexual assault investigations Friday. Her department released a letter outlining new campus sexual assault guidelines and argued that existing guidelines “have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints.”
“The Department has decided to withdraw the [Obama-era guidelines] in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits,” Candice Jackson, the Department of Education’s Acting Assistant Secretary for Civil Rights, wrote in a “Dear Colleague” letter, which you can read here.
Under the old guidelines, schools had been required to evaluate sexual assault cases using a “preponderance of evidence” standard, or else risk losing federal funding under Title IX. DeVos has argued that evidentiary standard is too loose, and the Department of Education is now allowing schools to apply either that standard or a higher burden of proof while a permanent policy is being crafted.
Attorneys for the accused have said too often that the Obama-mandated standard, known as “preponderance of evidence,” or “more likely than not,” undermined the due process rights of the accused. That standard is lower than the “beyond a reasonable doubt” standard common in criminal trials. The six-year-old guidelines imposed under the Obama administration governed how universities handle sexual assault allegations between students by discouraging cross-examination of accusers, allowing accusers to appeal not-guilty findings, and by recommending a 60-day limit on adjudications.
In another new element, the new instructions will allow campuses to provide mediation in sexual assault cases if both sides agree to it — an option not permitted under the Obama-era guidance which pushed school leaders to combat sexual harassment, including sexual violence.
The new “Dear Colleague” letter gives greater “due process” rights to the accused by allowing schools to adjudicate cases “by applying either a preponderance of the evidence standard or a clear and convincing evidence standard,” according to a question-and-answer memo on campus sexual misconduct issued by the Department of Education in conjunction with Friday’s announcement.
Advocates for the Obama-era guidance favor a “preponderance of evidence” standard, noting that victims chronically underreport instances of violence. One in five women and one in 16 men are sexually assaulted while in college, and more than 90 percent of victims do not report it, according to the National Sexual Violence Resource Center. Sexual assault survivors hailed Obama’s administration for providing them with long-overdue protections, but while critics accused the Obama administration of federal micromanaging and pushing colleges to find students guilty, with the number of sexual violence cases under investigation by the department’s Office for Civil Rights going from 55 in May 2014 to 344 as of July 12, 2017.
Friday’s announcement was unlikely to propel schools to immediately change their policies. Many college and university officials have said they would wait until rule-making is complete. The temporary guidance will be in place while the Education Department gathers comments and comes up with new rules.