President Donald Trump’s Department of Education is reversing landmark Obama-era guidelines designed to change how schools deal with sexual violence on their campuses.
The 2011 “Dear Colleague” letter from the Department of Education said Title IX, which prohibits discrimination based on sex at colleges and universities that receive federal funding, also covered sexual violence – effectively making colleges responsible for ending sexual assault on their campuses, as well as changing the standards for handling these cases.
Along with officially rescinding the letter, the Department of Education is rescinding a 2014 Q&A that expanded on the guidelines.
This shift was expected. In a speech earlier this month, Education Secretary Betsy DeVos said, “The era of rule by letter is over.” She called the current guidance heavy-handed and said it pushed colleges “to overreach.”
The 2011 letter recast campus sexual violence as an issue of discrimination and civil rights, allowing for an adjudication process different from the one required in an outside legal setting. By positing that sexual violence was a form of harassment, the letter made it the school’s immediate responsibility to address it.
If a school did not seriously address instances of sexual violence, the letter made clear that the federal government could withhold funding.
Critics of the Obama-era guidance said the rules diminished the rights of the accused by directing colleges to use a lower standard of proof in determining whether a sexual assault had occurred than the judicial system did. They also said that allowing either party to appeal decisions could lead to “double jeopardy,” or being tried for the same crime twice.
DeVos echoed this in her speech, mentioning both the victims and the accused.
“One assault is one too many,” she said. “One aggressive act of harassment is one too many. One person denied due process is one too many.”
A new Q&A released by the Department of Education on Friday addresses both these criticisms. It will act as the interim guidelines as DeVos reevaluates the administration’s policies addressing campus sexual violence.
Schools now have the option to use a standard known as “preponderance of the evidence” – mandated in the 2011 letter – or the more rigorous “clear and convincing evidence.” According to the new guidelines, schools should the standard applied in other student misconduct cases.
Additionally, while the 2011 letter recommended schools provide an appeals process for both parties in a case, the new guidelines let schools choose whether to do so, meaning a school can now offer the option to just the accused.
- REUTERS/Mike Theiler
Various groups have already come out against the new guidelines.
John King, DeVos’ immediate predecessor, tweeted a quote from Fatima Goss Graves, the CEO and president of the National Women’s Law Center: “This misguided directive is a huge step back to a time when sexual assault was a secret that was swept under the rug.”
Know Your IX, a group that aims to end sexual violence in schools, also blasted the decision to rescind the letter.
“The Dear Colleague Letter – which outlined strong procedural protections for survivors and accused students alike – made it possible for survivors to come forward, trusting that their school would handle their case fairly and provide them with the resources they needed to continue their educations,” it said in a statement. “Today, DeVos betrayed that trust and put years of progress at risk.”
It’s unclear how widespread the effects of the new guidelines will be. Melissa Korn, a Wall Street Journal reporter, noted that some states had already adopted policies reflecting the guidance outlined in the letter.
Under the new guidance, schools still have the option to keep the Obama-era directives – and at least one major system has indicated it will maintain its standards.
In an interview with the Chronicle of Higher Education this week, Janet Napolitano, the president of the University of California system, said she would keep the “preponderance of the evidence” standard regardless of federal directives.