Photo via Gage Skidmore/Flickr (CC-BY-SA)
The new standard of evidence could favor the accused.
Just a few weeks after the Department of Education announced it would roll back Obama administration’s guidelines for handling campus sexual assaults, Education Secretary Betsy DeVos has officially rescinded those federal policies.
A new “Dear Colleague” letter was released earlier today by the department, detailing the changes to the federal government’s campus sexual assault guidelines, the most glaring of which could give the accused more rights.
The interim Q&A notes that “any process made available to one party in the adjudication procedure should be made equally available to the other party,” such as the right to cross-examination from both the accuser and the accused. It also states that investigators “must make findings of fact and conclusions” based on “applying either a preponderance of the evidence standard or a clear and convincing evidence standard.”
In other words, campus sexual assault investigations and subsequent disciplinary measures will largely require a higher threshold of evidence to reach a conclusion, some of which may not be easily obtainable in order to prove a victim was sexually assaulted.
“As I said earlier this month, the era of rule by letter is over,” DeVos said, according to Politico.
WASHINGTON (AP) – Education Secretary rescinds Obama-era guidance on investigating campus sexual assault, puts interim rules in place
— Josh Lederman (@joshledermanAP) September 22, 2017
The Department of Education just officially rescinded the Obama admin's Title IX guidance on campus sexual assault prevention & adjudication pic.twitter.com/B8MnIE2FzN
— Caroline O. (@RVAwonk) September 22, 2017
New guidance from Ed. Dept.: Either preponderance of the evidence or "clear and convincing" standard OK to adjudicate campus sexual assault
— Lindsay Ellis (@lindsayaellis) September 22, 2017
Previously, the Obama administration’s guidelines required federally funded schools to investigate sexual violence complaints under Title IX. The administration encouraged colleges to use the preponderance of evidence standard, gave adjudications a 60-day limit, and insisted that schools steer away from allowing cross-examination of accusers.
A preponderance of evidence focuses less on the quantity of evidence and more on its reasoning, meaning that the accuser must have enough evidence that proves their claims are most likely true. The Trump Education Department strongly disagrees with this standard—and has rescinded the 60-day timeline—with Acting Assistant Secretary for Civil Rights Candice Jackson sharply criticizing its usage.
“Legal commentators have criticized the 2011 Letter and the 2014 Questions and Answers for placing ‘improper pressure upon universities to adopt procedures that do not afford fundamental fairness,'” Jackson wrote in today’s Dear Colleague letter. “As a result, many schools have established procedures for resolving allegations that ‘lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.'”
Since the interim guidelines do allow colleges to keep the preponderance of evidence standard if they so choose, it remains unclear how many will. For now, U.S. colleges await further policy announcements by the Education Department.