Department of Education Rolls Back Stiff Obama-Era Guidelines On Campus Sexual Assault

Secretary of Education Betsy DeVos has announced that the Department of Education is rescinding the Obama administration’s 2011 letter to colleges and universities that directed institutions to aggressively investigate allegations of campus sexual assault.

“As I said earlier this month, the era of rule by letter is over,” DeVos said in a statement announcing the changes. “The Department of Education (DOE) will follow the proper legal procedures to craft a new Title IX regulation that better serves students and schools.”

In 2014, Dana Bolger, co-founder of the Know Your IX campaign to end sexual violence, argued that the Obama administration's rules change benefited victims, who are often not believed when they come forward to report an assault.

“We live in a world where three rapists out of a 100 will ever spend a day in jail. We routinely disbelieve victims. Prosecutors routinely refuse to take on cases, and juries routinely fail to convict perpetrators,” Bolger said. “So I don't think it should be so surprising in a world where a policeman will refuse to investigate a case, that an administrator would do the same.”

Though celebrated by many, the Obama administration’s mandate was seen by some university officials (like this group of professors at Harvard Law School) as “misguided” because it required colleges to make judgments about allegations of sexual assault based on a “preponderance of the evidence” rather than “clear and convincing evidence,” requiring schools to act or face Title IX violations that could result in a loss of federal funding. Under DeVos, the DOE has argued the 2011 change was unfair.

“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,” said Candice Jackson, who is heading DOE’s Office of Civil Rights.

Nita Chaudhary, co-founder of UltraViolet, a leading national women’s advocacy group, disagreed with Jackson's assessment that the Obama-era regulations violated students’ rights.

“With sexual assaults routinely going unreported, uninvestigated and unpunished, the scales are already heavily tipped in the favor of rapists,” Chaudhary said in an emailed statement issued after the DOE’s announcement. “The idea that we need to focus more on the rights of the accused was almost laughable before this decision, now it’s just terrifying and dangerous.”

While DeVos and the DOE continue working on more permanent guidelines for colleges and universities, the department has released a question-and-answer document that explains how the department’s Office of Civil Rights will assess Title IX compliance in the interim. The new rules allow institutions to informally resolve allegations of sexual assault, provided both parties agree, instead of rendering judgment within 60 days on each case as the previous mandate stated.

While DeVos said the “interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly," anti-rape advocates argue the changes privilege accusers’ rights over those who have been assaulted.

“Today’s guidance allows schools to systematically stack campus investigations against survivors and push survivors out of school. The Department of Education is sending the message that they value survivors’ access to education less than that of the students who assault and abuse them,” representatives of Know Your IX said in a statement. “Title IX is the law and schools’ responsibility to respond to sexual violence is unchanged. ... We will not let universities backslide on their obligation to provide for an equitable and safe learning environment.”