Three years after Secretary of Education Betsy DeVos announced the decremention of an Obama Era Title IX directive regulating how colleges and K-12 schools handle sexual assault allegations, a new policy was released by the Department of Education protecting the rights of the accused.
In 2011, Russlynn Ali, Assistant Secretary of Education under then-President Obama, issued a highly controversial directive to universities and K-12 schools on how they should handle sexual assault cases moving forward, threatening to withhold federal funding under Title IX of the Civil Rights Act if they do not comply. Title IX forbids all institutions who receive federal funding from discriminating on the basis of sex.
What made Ali’s ‘Dear Colleagues‘ letter particularly controversial was not the increased effort and resources required by universities to investigate sexual assaults, but the disregard for due process and mandate to investigate non-school-related cases.
While the 2011 directive recommended schools provide an appeals process for parties unsatisfied with any rulings, they pushed against allowing any type of cross-examinations of the accuser or the accused, which is a paramount procedure in any legal system. Considering the severity of the charges put forth in these cases, allowing the accused to defend themselves adequately should be a top priority, and anything that limits the fact-finding abilities of a ‘court’ delegitimize the subsequent ‘justice.’
The Office for Civil Rights (OCR) also requested schools use the “preponderance of evidence” standard in all rulings, which in layman’s terms means an accusation only has to be more likely than not to have occured for the deciding body to rule in the accusers favor. This is the lowest legal standard, primarily used in civil suits.
Schools were also obligated to investigate any and all alleged cases regardless of whether the victim reported it, regardless of where the incident occured – on or off campus – and were told not to wait for or consult any formal police investigations to reach their conclusion, leaving open the possibility of people criminally cleared and proven innocent could still be disciplined by their college.
The New York Times also reported that the directive “advised schools to ramp up investigations of misconduct and warned that their failure to do so could bring serious consequences.” This may have encouraged schools to be overly swift and loose with rulings in order to please the government. Better safe than sorry. Now, unless schools are “deliberately indifferent” to incidents of sexual assault, they will not be punished by the Department of Education.
FIRE, the Foundation for Individual Rights in Education, took issue with the 2011’s directive at the time, writing “while several provisions of the OCR letter are unobjectionable or even welcome, others present a significant threat to student rights—specifically, to due process (which generally means having and following fair rules and procedures) and freedom of expression.”
Under the lowest judicial standard, a preponderance of evidence, the room for error grows, as noted by FIRE, and runs in direct contradiction to current legal practice which uses the highest judicial standard, beyond a reasonable doubt, for cases as severe as these. Fire noted that even using the clear and convincing evidence standard, which means something is very likely to have happened, would have been more than sufficient.
By allowing accusers to appeal decisions, the university unfairly subjects the accused to another hearing and forces them to defend themselves yet again regardless of whether the claim was already found to be baseless.
“With regard to freedom of expression, the April 4 letter fails to explicitly acknowledge that colleges owe free speech rights to their students. It also fails to recognize the fact that truly harassing conduct (as defined by the law) is distinct from protected speech. Public universities may not violate First Amendment rights, and private universities must honor their promises of freedom of expression. Previous OCR letters on this subject were clear about this, but this most recent letter is not.
The reason this lack of clarity is so important (and so disappointing) is that many colleges already enforce vague and overly broad sexual harassment policies, and often confuse speech protected by the First Amendment with speech or conduct that is actually punishable as harassment. With its lack of guidance on this issue, OCR’s April 4 letter compounds these problems. Under OCR’s new mandate regarding the standard of proof, students falsely charged with sexual harassment need only be found “more likely than not” to have violated a poorly written harassment policy to suffer disciplinary action.”FIRE
DeVos’s plan adopts the more narrow and specific definition of sexual harassment defined by the Supreme Court: “unwelcome conduct that is so severe, pervasive and objectively offensive.” The directive also expands the requirements to include “dating violence,” which was not included in the 2011 order. Any case that fails to meet this bar must be dismissed.
DeVos will also require schools hold live hearings and allow the accused more due process in defending themselves by requiring cross-examination during the hearings. Schools abilities to investigate any and all cases involving students was narrowed as well. Only claims filed through the school’s formal reporting process can be investigated, and it limits who can kick off the investigation and who can receive the accusation to only those “with the authority to take corrective action,” according to the New York Times.
Schools must “select one of two standards of evidence, the ‘preponderance of the evidence’ standard or the ‘clear and convincing evidence’ standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty,” the regulation reads. Schools may not flip between the two or apply them unevenly based on the situation at hand. There must be consistency.
The rules also “protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment,”
Title IX coordinators, staffers who facilitate complaints through the reporting process, “are now required to provide ‘supportive measures’ to accusers even if they choose not to go through with a formal complaint,” as reported by the Times.
“The department added an extensive section to combat retaliation against people who bring forward complaints of sexual misconduct.”
“The rules require that accused students be given written assurance that they are presumed innocent. Schools would not be able to impose any disciplinary actions on students accused of misconduct until the end of the case, though they retain the ability to remove students from campus if they are found to pose a risk. Cases involving students can be resolved through mediation, but those involving both staff and students cannot.”New York Times
Critics, including Democrats and women’s rights advocates, are calling for the reversal of this new policy, already threatening legal action against the provisions.
Rep. Barbara Lee called for DeVos to resign on Twitter while former Vice President and presumptive Democratic presidential nominee Joe Biden swore to the repeal the rules if he wins in November.
Conservative commentator Ben Shapiro points out the hypocrisy for democrats to come out in stark opposition to a new rule mandating due process in sexual assault cases all while trying to avoid any discussion or investigation of Joe Biden allegedly sexually assaulting Tara Reade because they “know Joe” and want to investigate claims before blindly believing his accuser.