{"id":594,"date":"2017-09-22T10:36:44","date_gmt":"2017-09-22T14:36:44","guid":{"rendered":"http:\/\/www.gopplaybook.com\/?p=594"},"modified":"2018-03-11T10:40:17","modified_gmt":"2018-03-11T14:40:17","slug":"betsy-devos-reverses-obama-era-policy-on-campus-sexual-assault-investigations","status":"publish","type":"post","link":"https:\/\/www.gopplaybook.com\/?p=594","title":{"rendered":"Betsy DeVos Reverses Obama-era Policy on Campus Sexual Assault Investigations"},"content":{"rendered":"
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By\u00a0STEPHANIE SAUL<\/span><\/a>\u00a0and\u00a0<\/span>KATE TAYLOR<\/span><\/a><\/span>

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Education Secretary Betsy DeVos delivering a speech in Washington this week. On Friday she rescinded Obama-era guidelines on campus sexual assault investigations.<\/span>\u00a0Credit<\/span>Tom Brenner\/The New York Times<\/span><\/figcaption><\/figure>\n

Education Secretary Betsy DeVos on Friday scrapped a key part of government policy on campus sexual assault, saying she was giving colleges more freedom to balance the rights of accused students with the need to crack down on serious misconduct.<\/p>\n

The move, which involved\u00a0rescinding<\/a>\u00a0two sets of guidelines several years old, was part of one of the fiercest battles in higher education today, over whether the Obama administration, in trying to get colleges to take sexual assault more seriously, had gone too far and created a system that treated the accused unfairly.<\/p>\n

The most controversial portion of the Obama-era guidelines had demanded colleges use the lowest standard of proof, \u201cpreponderance of the evidence,\u201d in deciding whether a student is responsible for sexual assault, a verdict that can lead to discipline and even expulsion. On Friday, the Education Department said colleges were free to abandon that standard and raise it to a higher standard known as \u201cclear and convincing evidence.\u201d<\/p>\n

In announcing the change, the latest in a widespread rollback of Obama-era rules by the Trump administration, the department issued a statement saying that the old rules \u201clacked basic elements of fairness.\u201d<\/p>\n

The move had been long sought by advocates for accused students, most of whom are men, who had complained that campus judicial processes had become heavily biased in favor of female accusers.<\/p>\n

\u201cThe campus justice system was and is broken,\u201d said Robert Shibley, the executive director of the Foundation for Individual Rights in Education. \u201cWith the end of this destructive policy, we finally have the opportunity to get it right.\u201d<\/p>\n

Ms. DeVos plans to enact new rules after a public comment period that department officials said could take at least several months, and in the meantime, colleges may choose to maintain the lower standard of proof. She did not provide any hints about whether the final rules would force schools to adopt the higher standard.<\/p>\n

Some states followed the lead of the Obama administration and passed laws requiring colleges to use the lower standard. But the move on Friday suggests Ms. DeVos wants colleges to consider making the change if they are legally able, raising the possibility that different colleges will begin to evaluate sexual assault complaints in different ways.<\/p>\n

Janet Napolitano, the president of the University of California system and a Homeland Security secretary in the Obama administration, said in a statement that the department\u2019s announcement would \u201cin effect weaken sexual violence protections, prompt confusion among campuses about how best to respond to reports of sexual violence and sexual harassment, and unravel the progress that so many schools have made.\u201d (California is one of the states now requiring the lower standard.)<\/p>\n

And Fatima Goss Graves, president of the National Women\u2019s Law Center, an advocacy group for women\u2019s rights, said Ms. DeVos\u2019s announcement would have a \u201cdevastating\u201d impact on students and schools.<\/p>\n

\u201cIt will discourage students from reporting assaults, create uncertainty for schools on how to follow the law and make campuses less safe,\u201d she said in a statement.<\/p>\n

Since many cases come down to one student\u2019s word against another\u2019s, and do not rise to the level of a police investigation, the evidentiary standard has become the main battleground in the nationwide fight over sexual behavior on campus.<\/p>\n

The \u201cpreponderance\u201d rule means colleges must find a student responsible if it is more likely than not that the student conducted a sexual act without the partner\u2019s consent. A \u201cclear and convincing\u201d case means it is highly probable the misconduct occurred.<\/p>\n

Even some liberal legal figures took issue with the Obama administration\u2019s approach, arguing that no student should be punished unless the school was more certain that a line had been crossed.<\/p>\n

Dozens of disciplined students have sued their colleges, some of them successfully, claiming that their rights had been violated.<\/p>\n

\u201cThe vast majority of campus sexual assault cases involve a lot of alcohol and no witnesses, so you essentially have two people who were probably drinking trying to recall events that may have happened weeks, months, or even years before,\u201d said Justin Dillon, a lawyer in Washington who has represented dozens of college men accused of sexual misconduct.<\/p>\n

One of his clients sued the Education Department last year, saying he had been found responsible for sexual assault only because the University of Virginia, where he was a law student at the time, had switched to the lower standard. According to his lawsuit, the accuser said that she had been unable to consent to sex because of alcohol consumption, while he claimed the accuser did not even appear to be intoxicated, let alone incapacitated.<\/p>\n

There are likely to be other immediate effects of Ms. DeVos\u2019s moves.<\/p>\n

She eliminated a requirement that investigations be completed in 60 days, now suggesting that the time frame be \u201creasonably prompt.\u201d The department will also allow mediation \u2014 sessions in which an accuser and accused hash out their differences \u2014 if both sides agree. Mediation was not permitted under the Obama administration guidelines, on the belief that women would feel pressure to participate.<\/p>\n

Christina Hoff Sommers, a scholar with the conservative American Enterprise Institute who has written about sexual assault, applauded the administration\u2019s decision to permit mediations, saying that some victims were not necessarily seeking a full-blown investigation and a trial. \u201cI think it\u2019s misguided to depict the average undergraduate in terms of oppressor and oppressed,\u201d she said.<\/p>\n

But Cari Simon, a Washington lawyer who represents sexual assault victims, said that colleges could use mediation to avoid addressing serious accusations. \u201cMediation allows schools to sweep sexual violence under the rug, treating it as a misunderstanding between students,\u201d she said.<\/p>\n

The Obama administration investigated hundreds of colleges based on student complaints that they had failed to adequately enforce sexual assault regulations. The Education Department had forced a number of colleges to change their procedures by threatening loss of federal funding.<\/p>\n

Department officials, in a conference call with reporters on Friday, indicated that they might discontinue some of the 350 or so active investigations if those cases hinged on rules that have now been rescinded.<\/p>\n

Those rules \u2014 delivered in a 2011 \u201cDear Colleague\u201d letter sent to colleges by the Obama Administration that laid out how sexual assault complaints were to be handled, as well a 2014 follow-up \u2014 came in response to accounts of colleges failing to take complaints seriously, letting untrained employees botch investigations and meting out little discipline.<\/p>\n

Since then, colleges have spent millions of dollars to hire and train investigators and counselors and to establish sexual assault prevention training for students. Those are likely to remain in place, and in a statement, Ms. DeVos said she expected colleges to not let their guard down. \u201cSchools must continue to confront these horrific crimes and behaviors head-on,\u201d she said. \u201cBut the process must also be fair and impartial, giving everyone more confidence in its outcomes.\u201d<\/p>\n

Ms. DeVos had signaled her desire to revisit the rules by holding\u00a0private meetings in July<\/a>\u00a0with students who said they had been unfairly punished, as well as others who said their accusations had been mishandled. This month, in a speech at George Mason University\u2019s law school, she sharply criticized the Obama administration\u2019s approach. \u201cThrough intimidation and coercion, the failed system has clearly pushed schools to overreach,\u201d she said.<\/p>\n

Natalie Weill, a recent graduate of the University of Wisconsin-Madison, was among those on Friday expressing dismay about Ms. DeVos\u2019s move. She said that she had used the 2011 guidelines to convince the college that the student who attacked her should be expelled.<\/p>\n

Without them, \u201cI would have been forced to drop out of school or risk the danger of encountering the offender,\u201d she said. \u201cDeVos\u2019s decision is a disaster for students, and there will be an outcry from engaged and enraged students on this attack on our civil rights.\u201d<\/p>\n

In a statement, a spokeswoman for the university, Meredith McGlone, said a Wisconsin student who commits sexual assault today would be no less likely to be expelled because of the changes. \u201cOur policies and procedures are not changing,\u201d she said.<\/p>\n

But Patricia Hamill, a lawyer in Philadelphia, said that she was pleased with several aspects of the new guidance. She cited in particular the department\u2019s statements that it is a school\u2019s responsibility, not a student\u2019s, to gather evidence, and that the accused student must be informed in writing of the allegations before being asked to respond. Ms. Hamill said schools often did not give the accused much detail about the charges they were facing.<\/p>\n

On Friday, the department cited\u00a0a decision<\/a>\u00a0last year in a lawsuit Ms. Hamill brought against Brandeis University. Her client, a student, had been found responsible for sexual misconduct against his ex-boyfriend during their 21-month relationship.<\/p>\n

In a decision allowing the case to proceed, Judge F. Dennis Saylor of the United States District Court in Boston noted that the school had used the \u201cpreponderance\u201d standard for sex cases but \u201cclear and convincing\u201d for almost all other types of alleged misconduct.<\/p>\n

Judge Saylor wrote that the \u201clower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students.\u201d<\/p>\n

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Correction: September 27, 2017\u00a0<\/strong>
\nBecause of an editing error, an article on Saturday about changes in the government\u2019s policies on campus sexual assault referred imprecisely to the background of an advocacy organization. While the organization, the Foundation for Individual Rights in Education, has received support from conservative donors, it describes itself as a nonpartisan organization that works on behalf of individuals holding a range of political viewpoints. The article also referred incorrectly to the participants in an investigation at the University of Wisconsin-Madison. While the victim had assistance from an academic adviser, she did not have a lawyer.<\/div>\n<\/div>\n