Darron Cummings/Associated Press
Citing a key federal court ruling in a Brandeis University case, the Trump administration on Friday advised college officials across the country to evaluate sexual misconduct claims by the same standard of evidence they use for any other student infractions.
The move by Education Secretary Betsy DeVos could make it tougher to prove allegations of sexual assault at some universities.
DeVos formally rescinded the Obama administration’s 2011 directive requiring colleges to aggressively investigate all sexual assault claims using a relatively low burden of proof. She also offered guidance for universities to handle sexual assault cases while her department develops a replacement policy.
“Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug,” DeVos said in a statement. “But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”
Aimed at ending a “rape culture” on campuses, the Obama-era sexual assault policy required colleges to aggressively investigate all sexual assault claims, or risk losing federal funding. Allegations of schools mishandling such cases triggered hundreds of federal investigations, including at least 26 in Massachusetts.
But the policy also faced criticism from civil libertarians, in particular for lowering the burden of proof from the “clear and convincing” standard used to weigh other types of disciplinary action on campus. Instead, the Obama administration rule called for campuses to consider sexual assault cases on a “preponderance of evidence” — whether the evidence suggests the offense “more likely than not” occurred.
The interim guideline released by DeVos allows colleges to adopt whichever standard they already use in other student discipline cases. In a footnote, she pointed to a 2016 decision that faulted Brandeis University for lowering the standard only in sexual assault cases, calling it “a deliberate choice by the university to make cases of sexual misconduct easier to prove.”
“The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students,” US District Judge F. Dennis Saylor wrote in his decision.
A Brandeis spokeswoman on Friday defended the university’s commitment to taking accusations of sexual assault seriously and treating students fairly.
“When instances of sexual misconduct are reported, we are committed to responding promptly and equitably,” Julie Jette said in a statement. “The Department of Education’s interim guidance will not diminish our efforts in this area.”
In the Brandeis case, a gay male student was found guilty of sexual misconduct, with a note on his permanent record, after his ex-boyfriend of nearly two years claimed he had engaged in sexual misconduct during the relationship. Among the infractions: kissing him in his sleep.
Though the student ultimately withdrew his case without a settlement, the case has been viewed as one of the harshest judicial assessments of a campus sexual assault policy that arose from the Obama administration’s guidance. Under Brandeis’s policy in 2014, students weren’t entitled to know the details of the charges against them, see the evidence, be represented by a lawyer, or cross-examine the accuser or witnesses, according to the ruling.
“There has been a veritable witch hunt in the country, primarily under the Obama administration,” said Harvey A. Silverglate, a civil liberties lawyer from Cambridge and coauthor of “The Shadow University: The Betrayal of Liberty on America’s Campuses.”
“We’re starting afresh and the Department of Education is showing that it’s got its mind open rather than closed.”
DeVos had announced plans earlier this month to roll back the 2011 policy, though the changes do not affect the underlying law on which the policy was based. Campuses are expected to guard against sexual harassment and gender-based intimidation and violence under Title IX, the 1972 gender discrimination law aimed at protecting students’ rights to an education.
The Obama administration ratcheted up expectations for colleges in 2011 without a regulatory review process, but instead in the form of a so-called Dear Colleague Letter. The Trump administration pledged on Friday it would seek public input in the process of replacing the policy.
“We’ve long held that that’s what they should have done in the first place, that women’s rights advocates have important points that need to be heard, due process advocates have important rights that need to be heard,” said Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, a campus free speech organization that Silverglate cofounded.
Interestingly, the policy was changed on Friday via another “Dear Colleague Letter” — this one signed by Candice Jackson, the education department’s acting assistant secretary for civil rights, who is herself a controversial figure in the field of sexual assault.
Politico reported recently that in applying for the education department job, Jackson touted on her resume her work targeting Bill and Hillary Clinton — even accompanying the women who had accused Bill Clinton of sexually predatory behavior prior to a presidential debate last year just after Trump was accused of sexual assault. She also had been quoted dismissing the majority of claims that her office handles as drunken consensual encounters that someone later regretted. That has led many women to question her department’s agenda as it reconsiders sexual assault policy.
“I think that a lot of people are reacting with panic,” said Janet Halley, a Harvard Law School professor and expert on sexual harassment.
Advocates for survivors of sexual assault fear a retreat on years of progress in which they were finally being heard. Fatima Goss Graves, president and CEO of the National Women’s Law Center, said that reversing the policy will have a “devastating impact on students and schools.”
“It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law, and make campuses less safe,” she said in a statement.
Massachusetts Attorney General Maura Healey, one of 20 Democrat state attorneys general who had urged DeVos to keep the old rule, said Friday that DeVos had “abandoned survivors of sexual assault on college campuses and all students looking to learn in a safe environment free from violence and discrimination.”
But Halley who is among the lawyers who have been arguing for years that the system was unfair and needed revision, said DeVos did not signal a reversal of campus rape protections.
Instead, Halley said, DeVos “reaffirmed that colleges and universities have a responsibility to respond robustly to claims of sexual misconduct on behalf of the educational opportunities of all students.”
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