DeVos reverses campus sexual assault rules
U. to evaluate rule changes before making adjustments| Sep 22, 2017
In an announcement this morning, Department of Education Secretary Betsy DeVos released a directive reversing some Obama-era rules surrounding Title IX claims and sexual assault.
Notably, some rollbacks could give accused students greater protection against campus rape and sexual misconduct claims if universities choose to invoke the rules. Colleges may now use a higher standard of evidence before finding students responsible for sexual assault. Resolution agreements, decided upon during the previous administration, are to remain in place.
Because the University has been in such an agreement since 2014, no changes will be made at this time, said Vice Provost for Institutional Equity and Diversity Michele Minter. As the Title IX coordinator, Minter explained that the the University plans to review the new rules and FAQ.
“We have to really review it,” she explained. “We think that the policy we have is working well for our campus. We think it’s fair and gives significant, equivalent rights to both parties.”
When asked if the University would consider advocacy on behalf of any Title IX policies, Minter explained that it will consider that but wait until the University has a better grasp on the changes — and what may unfold in the future.
“It is common that we consider joining forces with others in the major consortiums we’re a part of,” she said. Recently, the University has joined an amicus brief against the administration’s travel ban executive orders. President Christopher Eisgruber '83 has also engaged in other advocacy this past summer, such as urging Congress to protect DACA enrollees.
“We have joined amicus briefs and lots of different mechanisms that we use when we think it’s an issue particularly important to the community,” she said.
The University currently requires “a preponderance of evidence” standard for sexual assault and rape cases to find an accused student guilty of rape sexual misconduct claims. A preponderance of evidence requires decision-makers to be more than 50 percent sure an assault occurred in order to convict.
Prior to 2014, when this level of evidence became required at the University, the University required “clear and convincing” evidence. DeVos’s interim rules do not require colleges and universities to adopt — or in the University’s case re-adopt — the higher standards, but they do suggest the administration wants colleges and universities to strongly consider the change.
Assistant Vice President for Communications Dan Day deferred comment to Minter.
In its statement, the Department of Education explained that it will “engage in rulemaking on Title IX responsibilities arising from complaints of sexual misconduct. The department will solicit comments from stakeholders and the public during the rulemaking process, a legal procedure the prior administration ignored.”
Minter explained that the University plans to take time to read and consider this new set of actions to determine how they intend to react.
“There will also be a public comment period we will also consider,” she explained.
The new interim rules also rescind any suggested timeline for investigations, as opposed to the recommended time of 60 days under the previous rules. Requirements for schools to have a Title IX coordinator and report all incidents of sexual assault, as required by the 1990 Clery Act, remain in place.
The release withdrew the “Dear Colleague” letter from 2011 which elucidated the Obama administration’s policy. The letter informed colleges receiving federal money to use “a preponderance of evidence” standard in their cases, to allow accusers to appeal not-guilty findings, and to accelerate adjudication of cases, with a recommended 60-day limit. The 2011 letter also discouraged cross-examination of accusers. The DOE is also withdrawing the “Questions and Answers on Title IX Sexual Violence dated April 29, 2014.”
The University has been in a resolution agreement since 2014, and according to the new interim rules, these agreements are to remain in place. Resolution agreements, much like consent decrees, require Universities to work with the Office of Civil Rights to reach an agreement for future conducting of cases, and include a period where the Department of Education reviews the University’s handling of cases. That review period is ongoing.
Director of Government Affairs Joyce Rechtschaffen ’75 explained that the interim rules do not carry the same weight.
"My office will be following the Department’s rulemaking procedures along with Michele Minter’s office and the General Counsel’s office but the rulemaking process has not yet begun," explained Rechtschaffen in an email.
The 2014 agreement included several major shifts in University policy. The shifts, influenced both by the OCR and the Violence Against Women Act, included moving to a “preponderance of evidence” standard, switching from having a hearing with the Committee on Discipline to an investigator model with highly trained investigators who review all of the evidence. The investigators can adjudicate the case, according to Minter, but they can’t administer the punishment. Finally, both parties have equal rights to appeal.
“We think that removes a lot of the stress of being asked to confront the other party in the moment in these lengthy hearings,” said Minter. “All those documents are exchanged in writing to people have time to study them.”
Minter emphasized that the University provides the same information, rights, and opportunities to both parties in a sexual misconduct or rape case investigation. Minter stressed that the University’s system is not the same as a criminal justice system. Instead, cases are treated as violations of the code of conduct in a learning community.
She explained that, in a sexual misconduct case, the evidence standards treat both parties exactly the same way. Each party has the right to choose advisors, appeal, and receive material in the same time frame.
This story will be updated as more information becomes available.