Secretary of Education Betsey DeVos made good on her promise to rescind Obama-era guidelines on how to adjudicate reports of campus sexual assault. Civil liberty groups are celebrating and survivors’ rights advocates are expressing outrage. What does it all mean?
The biggest change in the DOE’s interim guidance is that it allows universities and colleges to modify the standard of evidence in campus sexual assault cases: from a preponderance of evidence to a clear and convincing standard of proof.
How does this change how schools are communicating around Title IX, sexual assault and proactive steps they are taking to keep their campuses safe? Here are a few things for administrations to consider:
- The order is, in fact, optional; schools can choose which standard of evidence they will enforce during this interim period. If they choose to enforce the new guidelines would they essentially be admitting those accused of sexual assault haven’t been getting a fair shake since the Dear Colleague letter? It could certainly be viewed that way so it’s important to message carefully, e.g. that the institution is always willing to accept the latest and most informed guidance in how to handle these sensitive and difficult matters in the most equitable way possible.
- 2014 Guidelines stated that certain cases of sexual misconduct could not have an informal resolution. However, in the new Q & A issued by the Department of Education, both partiescan now voluntarily agree to participate in informal resolution after full disclosure of the allegations. This means that a facilitator/mediator can help resolve cases out of the public and media spotlight. This could allow for more survivors of sexual misconduct to come forward, understanding that this less-public option is available to them.
- For those schools looking to adopt the new clear and convincing standard, they are—in many ways—committing to a greater level of communication and transparency with both the survivor and the accused student. Two such examples:
- All notes must be shared with both parties. It’s unclear whether this includes interview notes and witness summaries—both of which did not have to be shared under 2014 guidelines.
- The respondent must now receive written notice of an investigation before they meet with investigators-members of the administration.
The debate on campus will continue.
One side will argue there has been a rush to judgement in many sexual assault cases since 2014 and that last Friday’s action is a step back towards a more equitable process. The other side will argue that all the hard work in recent years to expose the epidemic of campus sexual assault has been reversed. At worst, they’ll claim, sexual predators have been emboldened by DeVos’ order.
Communicating around Title IX, already a delicate dance, just got even more complex.