In a controversial effort to ensure fair judicial process for those accused of sexual assault on college campuses, Secretary of Education Betsy Devos plans to rescind Department of Education guidance interims that concern sexual misconduct on college campuses. These interims were put in place under the Obama Administration during 2011 and 2014.
The new Q&A guidance interim on Sexual Misconduct put out by the Department of Education in a press release Sept. 22 said this measure is, “for schools on how to investigate and adjudicate allegations of campus sexual misconduct under federal law.”
Sexual misconduct and discrimination are nothing new to college campuses, and have been a part of federal policy for the past 45 years.
Title IX of the Education Amendments Act, which was signed by former President Lyndon B. Johnson in 1972, is a federal law that states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Under some of the new guidelines and revisions made by Devos’ Department of Education, colleges will have a much harder time knowing what to do regarding sexual assault and case management.
In some instances, simple word and phrase changes might cause us to see drastic results in how sexual assault is noticed and stopped. Colleges no longer have to complete an investigation within 60 days. They just have to conduct it in a “reasonably prompt” timeframe.
Other changes will have immediate impacts, such as the raising of the standard of proof for sexual assault to allow only evidence that is “clear and convincing.”
On paper this may sound like a good idea, but with the Department of Justice’s release of a study in 2016 detailing that one in five women college students has been a victim of sexual assault, it seems more like sweeping the problem under the rug.
The 2011 Guidance Letter issued by the Obama administration established a “preponderance of the evidence as the burden of proof” for sexual violence cases on college campuses. Simply, the evidence needed to prove that it was “more likely than not” that the accused did actually commit sexual violence or assault. That was the minimal burden, a much easier bar to cross than “clear and convincing” or the commonly referred to evidence that is “beyond a reasonable doubt.”
The new guidelines could even potentially allow for the accused to question the accusers during “mediation” or in a trial setting, a more than discomforting prospect for victims who may have struggled with coming out against their attackers originally. Reflecting on how we live in a time when those who are victims of sexual assault face shame and even “partial blame” for being preyed upon, I think it is a horrible idea to change policy in a way that makes it more difficult for justice to be served. In the Department of Education press release, Devos said, “This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly.”
However, revising the 2011 guidance removes the possibility that a college or university could be subject to federal punishment and/or a loss of funding should it be “found negligent in properly adjudicating cases involving sexual violence.”
Many student and sexual assault awareness organizations released statements condemning the guidance rollbacks and policy changes.
“Today, Betsy DeVos and the Trump Administration chose to tip the scales in favor of rapists and perpetrators,” said Diector of Education and Co-Founder of End Rape on Campus in a press release. “Rolling back this guidance is an affront to the students, survivors, and allies who have fought to bring the sexual assault epidemic out of the shadows.”
I just wish Devos was as interested in ending rape on campus as she is in making it harder to deal with those accused of sexual assault.