On Friday, Sept. 22, Education Secretary Betsy DeVos came under fire as she announced a new plan for handling cases of sexual assault and harassment on college campuses nationwide. Tweets about DeVos's new campus sexual assault policies show how divided -- and potentially problematic -- her new rules would be. She plans to rescind the guidance put in place during the Obama administration, widely seen as a step toward protecting and bringing justice to survivors. In its place, her office has issued a temporary guidance meant as a placeholder while new rules are drafted.
The statement released by DeVos' department on Friday says in addition to rescinding the current guidance, they will allow for public input in approaching their new guidance and "respond to the concerns of stakeholders," claiming the Obama-era protocol did not.
The Department of Education (DOE) statement continues,
The 2011 and 2014 guidance documents may have been well-intentioned, but those documents led to the deprivation of rights of many students -- both accused students denied fair process and victims denied an adequate resolution of their complaints.
The guidance being rescinded refers to the "Dear Colleague" Letter (DCL), a product of the DOE under former President Barack Obama, which outlined the procedures for university handling and politics of campus sexual assault and harassment cases. One major aspect included adopting "preponderance of evidence" (POE) for all Title IX cases, which essentially means deciding cases based on a standard of evidence that it's more likely than not that violence or harassment occurred. The Obama Dear Colleague Letter also told schools they should handle cases themselves in a timely manner. It additionally discouraged cross-examination of complainants and allowed both parties the right to appeal a not-guilty verdict.
This thread explains the DCL and why DeVos' evaluation of it is misleading.
DeVos' letter states that the DCL "required" adoption of the POE standard from the previous clear-and-convincing evidence standard. While this is true on its face, as the 2011 letter explains, the POE standard was merely to make it on par with other Title IX discrimination cases.
In referencing the higher clear-and-convincing standards that some schools were using, the DCL states,
Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.
As the tweet below points out, sexual assault and harassment are covered as a gender-based discrimination under Title IX, part of Education Amendments Act of 1972, and protects the rights of students to an equal education.
The DCL also adds that the Supreme Court has relied on the POE standard for Title VII cases, which also concern gender-based discriminations, while the Office of Civil Rights (OCR) use the POE standard for Title IX cases.
The letter calls for university investigations to be decided independent of a law enforcement finding, as police investigations may not turn out any evidence, but this does not mean that sexual harassment or violence did not occur.
DeVos' letter cites a Boston Globe article penned by members of the Harvard faculty claiming that the 2011 guidance lacked fair process for the accused. The DCL acknowledges that campus proceedings are not judicial ones, and it called for an equitable process in line with the OCR's standard for evaluating whether accused and complaining students are being treated fairly when a university carries out an investigation.
The DCL stated that both parties must have equitable rights during the investigation, including the right to witnesses and evidence and the right to appeal a verdict.
In the interim, the DOE statement says the office will revert back to the 2001 guidance, the Revised Sexual Harassment Guide.
In simpler terms, the tweet below lays out what impact DeVos' new rules might have for college students.
According to sources that talked about the new guidance to reporter Tyler Kingkade of BuzzFeed, the interim measures, and whatever might follow, are cause for concern.
A DOE Q&A about the new guidance states that universities do not have to abide by any time constraints in carrying out a Title IX investigation.
This is problematic as many schools have been criticized for their delayed investigations that can take years and result in students graduating without ever receiving a verdict -- or justice.
At the end of the day, people are upset and concerned, and for good reason.
Putting aside the legalese, one tweet reflected what predictably thousands of college students, educators, parents are feeling:
What will happen in the long term with DeVos' new guidance is anyone's guess, but based on the statement released today, things don't look good for survivors getting justice and timely investigations.