President Donald Trump’s Department of Education is reversing a landmark Obama-era letter designed to change how schools deal with sexual violence.
The 2011 “Dear Colleague” letter from the Department of Education explicitly stated that Title IX, which prohibits discrimination based on sex, also covers sexual violence — effectively making colleges responsible for ending sexual assault on their campuses and changing the standards for how these cases are enacted.
Along with officially rescinding the letter, the Department of Education is also rescinding a 2014 Q&A that expanded on the new guidelines.
This shift was expected. In a speech earlier this month, Secretary Betsy DeVos said “the era of rule by letter is over” and called the current guidance heavy-handed and that it pushed colleges “to overreach.”
The 2011 Obama letter effectively recast campus sexual violence as a discrimination and civil rights issue, allowing for a different process than would be required in an outside legal setting. By positing that sexual violence was a form of harassment, the “Dear Colleague” letter made it the school’s immediate responsibility to address it.
If schools did not seriously address instances of sexual violence, the Obama letter made it clear that the federal government could withhold funds.
Critics of the Obama-era guidance said the rules diminish the rights of the accused by directing colleges to use a lower standard of proof in ruling a student guilty of sexual assault. The guidance also faced criticism for allowing either party to appeal decisions, which critics said could lead to “double jeopardy” — being tried for the same crime twice.
DeVos echoed this belief in her speech, noting both the victims and accused. “One assault is one too many. One aggressive act of harassment is one too many. One person denied due process is one too many,” she said.
Both of these criticisms are addressed in a new Q&A released by the Department of Education on Friday.
Schools now have the option to use a “preponderance of the evidence” standard — as mandated in the 2011 Dear Colleague letter — or the more rigorous “clear and convincing evidence” standard. According to the new guidelines, schools should use whichever standard is applied in other student misconduct cases.
Additionally, while the 2011 letter recommended that schools provide an appeals process for both parties in a decision, the new guidelines let schools choose whether or not to allow appeals. If a school offers appeals, they can now offer the option to just the accused party, rather than the previous standard of both.
The new Q&A will act as interim guidelines as DeVos reevaluates the administration’s campus sexual violence policies.
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