On Friday afternoon, Education Secretary Betsy DeVos rescinded guidelines issued by the Obama administration on how colleges and universities should address sexual assault on campus. DeVos contended that the rules outlined in a 2011 “Dear Colleague” letter and a 2014 follow-up “lacked basic elements of fairness” and trampled on the rights of those accused of sexual assault.
Watch CBS News report on DeVos’ move here.
Principally, DeVos issued interim rules that allowed colleges the option of using a higher standard of evidence when investigating sexual assault cases. The Obama-era rules called for colleges to use “preponderance of the evidence,” which means that the accused must be disciplined if he or she is “more likely than not” guilty. However, the interim rules allow colleges to go back to the pre-2011 standard of “clear and convincing evidence” if they can legally do so. That standard requires discipline if it is “highly probable” that the accused is guilty.
Democrats, victims of sexual assault, and advocates for victims expressed alarm at the new rules. Some thought it could discourage victims from coming forward. For instance, Janet Napolitano, the president of the University of California system, expressed concern that the new rules could weaken protections for victims and “unravel the progress that so many schools have made” in addressing sexual assault. She was also worried that the new rules make it unclear what colleges must do to stay in compliance.
Others feared it could allow colleges to sweep sexual assault under the rug. Cari Simon, a lawyer for sexual assault victims, said that new rules that allow mediation would allow colleges to treat sexual assault as merely “a dispute between students.”
Reaction from Democratic lawmakers was equally harsh.
Secretary DeVos and this Administration have betrayed the victims of campus sexual assault with this decision. https://t.co/1PDviuJVgn
— Senator Bob Casey (@SenBobCasey) September 22, 2017
This is not just a betrayal of the victims of campus sexual assault- it also discourages future victims from coming forward & seeking help.
— Senator Bob Casey (@SenBobCasey) September 22, 2017
— Senator Ben Cardin (@SenatorCardin) September 22, 2017
Shameful. This decision will hurt and betray students, plain and simple. https://t.co/b2syuMM4ma
— Kirsten Gillibrand (@SenGillibrand) September 22, 2017
There are a lot of reasons for concern about this latest move by DeVos. For one thing, she works for a president who revels in degrading women, and just recently retweeted a GIF depicting himself knocking Hillary Clinton down with a tee shot–a tweet that is still up a week later. The person who will implement these rules, Candice Jackson, head of the Education Department’s Office of Civil Rights, claimed in July those who accused Trump of sexual assault during the campaign weren’t really victims, and was forced to apologize for claiming that over 90 percent of rape cases happen because both accuser and accused were drunk. DeVos herself has been a bit too cozy for comfort with men’s rights groups.
That being said, though, the Obama-era rules look like a classic case of what happens when you rush new policy into place without adequately ironing it out. When DeVos first hinted that she was looking at changing the Obama-era rules, Slate’s Mark Joseph Stern and The Atlantic’s Emily Yoffe both took a long, hard look at the Obama rules. They didn’t like what they saw.
For one thing, the 2011 rules allowed colleges to deny the accused the right to have a lawyer present during disciplinary hearings for sexual assault, even considering the stakes. After all, those accused of assault could potentially face expulsion. In some cases, those accused of assault never received specific, written notice of the allegations against them–making it difficult to defend themselves.
On the face of it, it looks like in his zeal to get college officials to take sexual assault more seriously, Arne Duncan, who was Education Secretary at the time both letters were issued, may have inadvertently eroded basic principles of due process. He also may have ignored longstanding Supreme Court precedent that held “clear and convincing evidence” was an appropriate standard when “particularly important individual interests and rights are at stake.” It would seem that if you’re potentially making a life-changing decision such as kicking someone out of school, you would want to ensure that the standard of evidence is strong enough to ensure that you get it right.
When these rules were announced and colleges updated their policies accordingly, criticism came in from across the spectrum. For instance, in 2014, several professors at Harvard Law–President Obama’s alma mater–objected to provisions that took away “the most basic elements of fairness and due process.” Similar concerns were expressed a year later by professors at Penn Law.
Numerous studies have long suggested that the number of false reports are vanishingly small. However, former Air Force judge advocate Reggie Yager examined the research into false rape reports in 2015, and concluded that much of that research was “methodologically unsound.” Even without that to consider, Yoffe rightly notes that “no legal or moral system purporting to be just” can rely merely on statistics.
To be sure, the new interim rules are problematic themselves in some respects. They suggest that schools should be able to ban accusers from appealing decisions by administrators, even when new evidence surfaces. They are also somewhat vague on what constitutes “fairness.” Additionally, they suggest that sexual assault cases should be conducted under the same evidence standards as other student misconduct cases–even though sexual assault is a far different beast than plagiarism or cheating.
There’s no denying that in a drive to solve one problem, the Obama Education Department may have inadvertently created another. But this is an issue that can’t be solved just by DeVos and her staff. Given the huge credibility gap that DeVos, and this administration as a whole, have with regard to domestic violence and sexual assault, DeVos would do well to make any reform efforts as bipartisan as possible. Perhaps if Duncan had gone this route in 2011, we wouldn’t have this problem now.
Let’s be clear. We need to end the perception that the system is rigged against people who have been sexually assaulted. It’s a big reason many victims don’t come forward. But it can be done without eroding one of the most sacred principles of our democracy–that no one is below the law.
(featured image courtesy Gage Skidmore, available under a Creative Commons BY-SA license)