Today Education Secretary Betsy DeVos withdrew the Obama-era letter instructing colleges to use the preponderance of evidence standard when adjudicating sexual assault.
DeVos called the previous guidelines—distributed to colleges in 2011 as part of a "dear colleague" letter, then clarified in 2014—well-intentioned but flawed.
"These documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints," reads the new "dear colleague" letter, which was signed by Acting Assistant Secretary Candice Jackson and approved by DeVos.*
The previous guidance chipped away at due process in several ways. It lowered the burden of proof to a "preponderance of the evidence" standard, which meant that accused students could be found responsible for sexual misconduct if administrators were only 51 percent convinced of the charges; it discouraged allowing the accused and accuser to cross-examine each other, reasoning that this could prove traumatizing for survivors of rape; and it stipulated that accusers should have the right to appeal contrary rulings, allowing accused students to be re-tried even after they had been judged innocent.
The letter correctly notes that the Obama-era interpretation of Title IX was never subjected to public notice and comment—an inappropriate course of action, given that the guidance was essentially a new rule rather than a clarification of an existing rule.
The Education Department is formulating a new approach to Title IX sexual misconduct adjudication. In the meantime, the public is invited to refer to an interim Q&A-style document.
Given the massive issues with Title IX enforcement on campus, this is a promising step. If university administrators are going to be involved in the process of investigating sexual harassment and assault, they should do so in accordance with principles of basic fairness.
Given how invested many survivors' advocacy groups are in the previous, flawed Title IX procedures, it will be interesting to see their reaction to this news. Several former Obama staffers have already set up a legal defense fund to fight DeVos in court if she tries to "roll back Title IX protections...in ways we think are illegal," former Department of Education staffer Aaron Ament told Politico. One of the members of the group's advisory board is Catherine Lhamon, now chair of the U.S. Commission on Civil Rights and former head of the Obama Education Department's Office for Civil Rights, the subagency responsible for the previous Title IX approach.
*This sentence was updated to clarify Jackson's role.
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