Last month, Betsy “What Are Student Loans” DeVos decided to take a quick break from defunding public schools and discriminating against LGBTQ+ kids in order to fuck over survivors of sexual assault.
In 2011, when we had a competent president, the Office for Civil Rights released the “Dear Colleague” letter. This set up new and improved Title IX guidelines for how colleges and universities handled sexual assault investigations. It wasn’t perfect, but it helped.
Title IX is the federal law that protects students from sex discrimination, including sexual harassment and assault in federally-funded educational programs. This is why colleges and universities have sexual misconduct policies and resources for students to report assaults to campus authorities, rather than the police.
Some of the “Dear Colleague” letter guidelines included instituting a preponderance of the evidence standard and setting a sixty day deadline for investigations. The new DeVos guidelines replace that, along with allowing schools to use a clear and convincing evidence standard and to take as long as they want to complete an investigation. The only requirement is that they be “reasonably prompt.”
“Reasonably prompt” is not a timeframe. Every college student knows that if the professor doesn’t give you a due date on an assignment, then it is being turned in on the last day of the semester. Yes, there’s always a chance that you’ll score some Adderall and get it done earlier. But either way, the person involved has no clue when it’ll be done, and that’s a problem.
What’s the difference between those evidence standards? Preponderance of the evidence means the accused is found guilty, if the evidence shows it’s more likely than not that the assault occurred. It’s the same standard used in civil cases, such as personal injury suits. School investigations are not criminal. The worst they can do is expel a student; they can’t sentence anyone to jail time or make them register as a sex offender.
Clear and convincing evidence is stricter. It has to be proved that it’s substantially more likely than not that the accused is guilty. What qualifies as “substantially” is vague. In the court system, the definition varies between jurisdictions.
Another major difference is that mediation is now allowed. This is when the accuser and the accused sit down together and talk it out with the help of a third party, allowing a sexual assault investigation to be treated like couple’s counseling. Fear of the perpetrator/reprisal is one of the top reasons women don’t report assault. But, yeah, putting them in a room together seems like a great idea that won’t pressure or intimidate victims at all.
These are “interim” guidelines, which means “the Obama policy is dead; here’s what to do until we come up with a permanent replacement.” Janet Napolitano, the president of the University of California system, said in a statement that the new guidelines would “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.”
DeVos has made it clear that she is more concerned with protecting sexual predators than their victims when she first announced her intentions and repeatedly equated victims and perpetrators. “The notion that a school must diminish due process rights to better serve the ‘victim’ only creates more victims… If everything is harassment, then nothing is… We can do a better job of preventing misconduct through education rather than reacting after lives have already been ruined.” Betsy, the person who is assaulted is the victim in the situation. Perpetrators of sexual assault are not victims.
Political reporter Robert Gehrke explained why DeVos’s comments are especially tone deaf. “We don’t have any evidence to show a pattern of young men having their lives destroyed due to fabricated claims of sexual assault. We do, however, have a well-documented pattern at multiple universities of young women being doubted, questioned, sanctioned, and ignored when they come forward as victims of attacks. Yet DeVos is building a new policy on a foundation that doesn’t exist, using conjecture and presumption rather than data to tilt the scales decidedly in favor of the accused.” Fuck facts, right?
Preponderance of the evidence still operates under the standard “innocent until proven guilty” principle. The due process rights of the accused were not diminished under the Obama guidelines. And only 2–10% of allegations are false, but sure, Betsy.
It (somehow) gets worse. There are around 350 active federal investigations based on Title IX complaints made by students that their school failed to properly enforce sexual assault regulations. Those investigations may be discontinued if they were based on recently rescinded regulations.
According to The New York Times, the “Dear Colleague” letter was originally issued to address “colleges failing to take complaints seriously, letting untrained employees botch investigations and meting out little discipline.” Obama’s policy didn’t erase those problems, but they did result in schools spending money to train and hire people who knew what they were doing, as well as launching prevention education programs. As a country, we are going backwards on sexual assault policy. For victims, this is not adding insult to injury; this is blocking the exits in a burning building.
We don’t yet know whether these guidelines will be made permanent. What we do know is that we live in a world where two out of three assaults go unreported, and one in four women in college are victims. DeVos isn’t just failing to help survivors; she’s actively protecting sexual predators.