DeVos Revokes Obama-Era Guidelines for Handling Campus Sexual Assault

by | September 25, 2017

By Lauren Rosenblatt

Education Secretary Betsy DeVos on Friday rescinded controversial Obama-era guidelines that had prodded colleges and universities to more aggressively _ critics said too aggressively _ investigate campus sexual assaults.

The decision was not a surprise given DeVos' past criticism of her predecessor's policy. But it left women's groups worried that victims of sexual assault will lose protections or face intimidation to remain silent.

Supporters of DeVos said the change would lead to greater consideration of the rights of those accused of sexual assaults.

The department said it was withdrawing the Obama administration's policy _ which had been spelled out in a 2011 letter _ because of criticism that it placed too much pressure on school administrators, favored alleged victims and lacked due process for those accused. Obama's Education secretary issued the guidelines under a federal law designed to prevent discrimination on the basis of sex and gender, known as Title IX, and indicated federal funding could be at risk if the department's recommendations were not followed.

"Those documents have led to the deprivation of rights for many students _ both accused students denied fair process and victims denied an adequate resolution of their complaints," the department's acting assistant secretary for civil rights, Candice Jackson, said in a letter Friday.

Advocates for victims complained that DeVos and the department had not spent enough time listening to survivors.

"Survivors are now scared to utilize their schools' process," said Sage Carson, project manager for the advocacy organization Know Your IX.

Carson, who is a survivor herself, said she would have dropped out of school after her assault if not for the Obama guidelines that ensured she didn't have to see her respondent on campus. The decision to rescind those guidelines was alarming and made too quickly, she said.

The department released a new, temporary question-and-answer statement, replacing one issued by the Obama administration in 2014, to advise colleges and universities about how their responsibilities have changed. It emphasizes providing the same information, rights and opportunities to both parties in a sexual assault investigation.

David P. Shapiro, a San Diego-based criminal defense attorney who has advocated for people accused of sexual assault, said he welcomed the changes as a way to consider everyone's rights equally. "In order to beef up the protections for the accused, it doesn't need to be at the expense of the accuser," he said.

Among other things, the new guidelines allow schools to facilitate an informal resolution process if both parties agree, rather than adjudicate every case, as previously required.

The letter also rescinds any suggested timeline for investigations. The former guidance recommended schools reach a decision in about 60 days, something critics said put too much pressure on administrators, particularly in cases that involved scant or conflicting evidence.

The guidelines still require each school to have a coordinator and to report all incidents of sexual assault.

And the new guidance gives schools more flexibility in deciding what standard of evidence to apply in investigations. The previous guidelines suggested using a "preponderance of evidence," meaning that decision-makers must only be more than 50 percent sure that an assault occurred. Critics said a higher standard should be used, such as "clear and convincing evidence" of an assault, which will now be an option.

Carly Mee, a staff attorney with SurvJustice, said the preponderance of evidence standard put both parties on "equal footing." Raising the standard of evidence would tip the scales in favor of those who have been accused because there are not usually any witnesses and very little direct evidence of the assault.

"It's going to be a lot harder for (survivors) to come forward if they know they don't have the same protections in place," she said.

The guidelines also make the appeals process more flexible, allowing schools to decide if they will offer the option to appeal to both parties involved or just to the person who has been accused.

"If a survivor goes through a process and feels the outcome is unjust, they don't have any options," said Neena Chaudhry, director of education and senior counsel at the National Women's Law Center.

Although the department rescinded existing guidelines, schools are still able to use their system in place if they choose, and it is expected many will. Chaudhry said that is the "most legally sound way to move forward" since the laws behind the original guidance are still in place.

Advocates are hopeful student activism, which is largely credited with putting pressure on the Obama administration to more strongly enforce protections for survivors, will encourage schools to continue following the 2011 guidance on a voluntary basis.

Some states, including California, have adopted the policies as part of their own state law, meaning schools in those states will follow the same procedures regardless of federal relaxation.

Janet Napolitano, president of the University of California system, said earlier this week that her campuses have redone how cases are investigated and adjudicated to make sure the underlying policies remain in place. "We all share the concern they're going to backtrack," she said.

USC Provost Michael Quick also reaffirmed the university's commitment to fighting sexual misconduct. "It simply cannot be overstated: This university will not tolerate sexual misconduct in any form," he said in a statement.

Some of those accused of sexual assaults have complained that the system was stacked against them, often leading to disciplinary action or even expulsion. Robert Shibley, executive director of the Foundation for Individual Rights in Education, which advocates for people accused of sexual assault, said the new guidelines were more "conscious" of due-process rights than previously. It gives more freedom to colleges, he said, to focus on being fair to all students.

"Colleges should be accountable to their students and faculty members, and justify _ if they're going to deny someone a protection _ why it's better that they shouldn't have that protection," he said. "It was good to see the department give some guidance as to individual due process protections."

The revised guidelines are only temporary, as the department collects comment from the public and continues to meet with groups from all sides of the debate before issuing final guidance after the formal review period. The 2011 and 2014 guidance did not go through a notice and comment process, which many say led to confusion about how to properly follow the suggestions.

Echoing what she said at a conference earlier this month to announce the formal review process, DeVos said in a statement Friday: "The era of rule by letter is over."

(Los Angeles Times staff writers Teresa Watanabe and Rosanna Xia in Los Angeles contributed to this report.

(c)2017 Los Angeles Times