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The Most Disturbing Parts Of Betsy DeVos' New Campus Sexual Assault Guidelines
In addition to revoking Obama's "Dear Colleague" letter on Friday morning, the Department of Education under Secretary Betsy DeVos also issued a new interim Q&A to replace Obama's key document from 2014 (which you can read here). The original Obama document outlined how colleges should investigate allegations of campus sexual misconduct under federal law. DeVos' guidelines Friday rolled back those recommendations.
While Obama's guidelines required schools to adopt a minimal standard of proof or a "preponderance of evidence" and discipline students, or risk losing federal funding under Title IX, the Department of Education's acting assistant secretary for civil rights, Candice Jackson, argued that the old 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." Under the new guidance, schools will no longer be required to evaluate sexual assault cases using the preponderance of evidence standard, but now have the option to apply a higher burden proof in campus sexual assault cases, making alleged sexual assault claims more difficult for complainants to prove.
DeVos has argued that the Obama-era guidelines favored students who accused others of sexual assault, while limited the rights of the accused.
"This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly," DeVos said in a statement. "Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes."
Currently, one in five women are sexually assaulted and one in 16 men are assaulted during college, but only 20 percent of sexual assault claims are reported, mostly because they don't tend to think their claims will be taken seriously, according to a report by the Justice Department.
While Obama's guidelines included specific requirements regarding students who are assaulted by someone of the same gender, undocumented students, and students with disabilities, the new Q&A didn't reference the rights of minority groups. Here, some of the most alarming quotes from DeVos' new Q&A on campus sexual misconduct:
1
Schools enter into voluntary resolution agreements with OCR [Office of Civil Rights] to address the deficiencies and violations identified during an OCR investigation based on Title IX and its implementing regulations. Existing resolution agreements remain binding upon the schools that voluntarily entered into them. Such agreements are fact specific and do not bind other schools. If a school has questions about an existing resolution agreement, the school may contact the appropriate OCR regional office responsible for the monitoring of its agreement.
The Department of Education has done away with the requirement that colleges and universities have to abide by the guidelines under the 2011 "Dear Colleague Letter" which requires that schools must "take immediate and effective steps to end sexual harassment and sexual violence" and can be denied institutional access to federal funds should they be found in violation of Title IX. The new Q&A stipulates that these requirements are "voluntary" and "do not bind other schools."
2
There is no fixed time frame under which a school must complete a Title IX investigation. OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.
Obama's 2014 Q&A required colleges to "take steps promptly once it has notice of a sexual violence allegation and should provide the complainant with periodic updates on the status of the investigation." The old guidelines also stressed the importance of not delaying an investigation, because it may subject a student to a hostile environment.
3
Any rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms. Restricting the ability of either party to discuss the investigation (e.g., through “gag orders”) is likely to deprive the parties of the ability to obtain and present evidence or otherwise to defend their interests and therefore is likely inequitable.
While Obama's guidelines set out to "protect the complainant and ensure his or her safety as necessary, including taking interim steps before the final outcome of any investigation," DeVos' makes no such promises.
4
Disciplinary sanction decisions must be made for the purpose of deciding how best to enforce the school’s code of student conduct while considering the impact of separating a student from her or his education. Any disciplinary decision must be made as a proportionate response to the violation.
DeVos has stated that she intends to hear from victims and from students accused of sexual misconduct and to give greater "due process" rights to the accused. The Q&A mentions that schools must consider the impact of suspending a student accused of sexual assault, while Obama's policies stressed that schools should minimize the burden on the complainant.
5
The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.
The new guidelines gives schools the option to use a clear and convincing evidence standard, which means that the school has to present evidence that leaves you with a "firm belief or conviction that is highly probable" that the claim is true. This is a higher standard of proof than proof by a preponderance of evidence, which means "more likely than not," and is common in civil law. The change makes it more difficult for alleged sexual assault claims to be proven true, especially when it's difficult for sexual assault victims to produce physical evidence and only half of reports result in law enforcement investigations.
