DeVos rescinds Obama-era school sexual assault policy

Greg Nash

Education Secretary Betsy DeVos released interim guidance Friday on how colleges should handle sexual assaults on college campuses, the latest step in the Trump administration’s controversial rollback of Obama-era guidelines, in an effort to better protect both victims and students who are accused. 

The agency withdrew a 2011 “Dear Colleague” letter that required schools to adopt a minimal standard of proof — the preponderance-of-the-evidence standard — when disciplining students and replaced a 2014 question-and-answer document on how schools should investigate and adjudicate cases of sexual misconduct.


The temporary guidance is meant to serve as a placeholder while the agency crafts news guidance with a new standard through a rulemaking process that involves public notice and comment.

Senior department officials said it was inappropriate for the former administration to mandate schools use the preponderance-of-the-evidence standard without public input.

“The department’s interim guidance emphasizes the important of fairness and impartiality in campus proceedings while relying heavily on prior guidance from [the Office for Civil Rights] dating back to 2001,” the official said.

One senior department official said previous guidelines were “deeply flawed substantively and procedurally” and couldn’t be left in place while new guidelines are drafted.

Critics were quick to slam the agency’s action.

“This decision shows the Trump Administration’s utter disregard for survivors of sexual assault,” Rep. Nita Lowey (D-N.Y.) said in a statement.

“The effect of this policy reversal will be to delegitimize and suppress the voices of survivors, who are being told by this administration that they will be met with skepticism,” she said. “Shame on the Trump Administration.”

Michael Dolce, a Florida-based attorney with Cohen Milstein Sellers & Toll who specializes in representing victims of school sexual assaults, said the agency’s new guidance will discourage victims from reporting sex crimes. He called the agency’s move “reckless, unjustified and completely unnecessary.”

“Weakening guidance about and enforcement of campus sexual assaults is a horrific step back for crime victims’ rights and for public safety more broadly,” he said. “The move will also encourage colleges and universities to reduce, rather than increase, efforts to combat sex crimes — efforts that are already substandard and ineffective on numerous campuses across the country.”

In addition to the evidence standard, the agency said the 2011 letter being withdrawn insisted schools with an appeals process allow complainants to appeal not-guilty findings when appeals were typically reserved for accused students.

The agency claims the letter also discouraged cross-examination by the parties, forbade schools from relying on police investigations of criminal conduct to resolve complaints and forced schools to establish policing and judicial systems while directing schools to resolve complaints on an expedited basis.

Under the interim guidance, the agency said schools now have the discretion to apply either the preponderance-of-the-evidence standard or the clear-and-convincing-evidence standard, meaning is it “more likely than not” that sexual harassment or violence occurred, or the convincing evidence standard, meaning “is it highly probable or reasonably certain,” which is the higher standard of proof.

Though no longer required to allow appeals, the department said schools can choose to limit appeals to only those from the accused student or allow appeals from both parties.

“As I said earlier this month, the era of rule by letter is over,” DeVos said in a statement. “The Department of Education will follow the proper legal procedures to craft a new Title IX regulation that better serves students and schools.”

The department expects to release a notice of proposed rulemaking in the next few months.

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