In 2011, as part of a push by the Obama Administration to address statistics making headlines about college campus sexual assault, then- Vice President Joe Biden announced the “Dear Colleague Letter.” This letter, issued by the Office of Civil Rights, reaffirmed the responsibilities of public schools in instances of on-campus student-to-student sexual harassment and assault cases, and made suggestions as to how these institutions could improve their guidelines. The purpose was to clarify many issues within the Title IX statute regulating the role of institutions in sexual harassment and assault cases.
One of the most controversial aspects of this letter is its commitment to the use of the “preponderance of evidence” standard in educational institutions. This burden of proof is considered the lowest used in the court system today: it only requires testimonial and/or physical evidence to provide proof that a crime had a higher than 50% chance of happening. Previously, many schools had used what’s called the “clear and convincing” standard, meaning that the evidence provided needed to be more rigorous than the “preponderance” standard, but less so than the “beyond a reasonable doubt” standard, which is typical of criminal cases. In other words, evidence needed to be highly convincing, but not necessary so high that it positively proved the event happened.
Victims’ rights advocates hailed this as a win in their fight for justice for the victims of sexual crimes. According to one advocacy worker, the preponderance of evidence standard made it easier for LGBT+ victims, who have been met with ridicule and indifference in the criminal justice system, to come forward (Waters, 2017). Others claim that the Title IX clarifications in the Dear Colleague letter help both victims and institutional administrators know what steps schools need to take in instances of sexual harassment and assault (Vaglanos, 2017).
The new leadership within the Department of Education, headed by Secretary DeVos, has decided to rescind these Obama-era Title IX guidelines. Specifically citing the burden of evidence necessary for punishment, Ms. DeVos and her office have claimed that using the preponderance of evidence standard tramples the rights of the accused, removing their right to due process (Tatum, 2017). They’ve since replaced it with their own version of a Dear Colleague letter, which argues for treating victims and defendants fairly, and insists on the use of the clear and convincing standard, in the form of a fact sheet they’ve released while they formulate new guidelines (Hefling & Emma, 2017).
The creation of the original guidelines in 2011 was done with the intention to bring clarity to a system which, in its vagueness, had failed many students across the nation. This much both sides agree on. However removing existing guidelines and creating new, interim ones while yet another document of guidelines is being formed doesn’t speak to a desire to continue making the process just and equitable. Rather, the Department of Education is muddying the waters around Title IX guidelines for schools and their students, and leaving them in limbo for an as-of-yet undetermined amount of time. Once the new guidelines are formulated and released, which Ms. DeVos claims could take several months, institutions will need to recalibrate their own policies, further extending the time it will take for the education system to have clear rules on the consequences of something as serious as sexual violence. And all of this – the uncertainty being created around how institutions should go about investigating and prosecuting sexual harassment and assault, the dismantling of protections created to bring more victims into the light – is being done in the spirit of protecting the rights of those accused of sexual crimes. This policy strategy ultimately comes off as unwise and dismissive of serious issues plaguing our educational institutions.
References
Hefling, K., and Emma, C. (2017, September 22). Obama-era school sexual assault policy rescinded. Politico. Retrieved from http://www.politico.com/story/2017/09/22/obama-era-school-sexual-assault-policy-rescinded-243016.
Tatum, S. (2017, September 22). Education Department withdraws Obama-era campus sexual assault guidance. CNN politics. Retrieved from: http://www.cnn.com/2017/09/22/politics/betsy-devos-title-ix/index.html.
Vaglanos, A. (2017, September 10). Betsy DeVos may rescind Title IX guidelines. Here’s what that could mean. Huffington Post: Women. Retrieved from: http://www.huffingtonpost.com/entry/betsy-devos-may-rescind-title-ix-guidelines-heres-what-that-could-mean_us_59aff829e4b0dfaafcf443e5.
Waters, E. (2017, July 14). Betsy DeVos needs to listen to survivors. The New York Times: Opinion. Retrieved from https://www.nytimes.com/2017/07/14/opinion/betsy-devos-needs-to-listen-to-survivors.html.