DeVos Scraps Obama Campus Sexual Assault Guidance

WASHINGTON, DC — Education Secretary Betsy DeVos rolled back Obama-era guidelines on campus sexual assault investigations, a move critics blasted as one that extends protections to assailants and sends a message to victims that their reports will be met with skepticism and doubt. DeVos has said the Obama policies were heavy-handed, skewed against those accused of assault and pushed schools to “overreach.”

The new temporary guidelines allow publicly funded colleges and universities to set their own standards of evidence when investigating campus assaults. They can still use the “preponderance of evidence” standard set by former President Obama in a 2011 letter that framed campus sexual assault as a Title IX civil rights issue, but they may use the harder-to-prove standard of “clear and convincing evidence” — a standard tougher than the one used in the judicial system.

The guidance outlined by DeVos also applies to publicly funded K-12 schools. (For more national political news, sign up for the free White House Patch email newsletter.)

“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly. Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug,” DeVos said in a statement. “But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

The rollback was expected. In a speech earlier this month, she said “the era of rule by letter is over,” and said the Obama policies had “weaponized” the Department of Education “to work against schools and against students.”

DeVos’ announcement was swiftly condemned.

U.S. Rep. Debbie Dingell, a Democrat representing DeVos’ home state of Michigan, called the rollback “an outrageous affront to survivors of sexual assault” that “turns back the clock to a time when survivors of rape and assault suffered in silence, terrified that if they came forward they would be ostracized on campus or in their classrooms, or that their voices would be ignored completely.”

SurvJustice, a nonprofit group that provides legal assistance to students bringing claims of sexual assault, questions whether DeVos has the authority to “flip a civil right on its head.”

“The department has exceeded its authority to intentionally place protections for those accused of sex discrimination over those victimized by sex discrimination … It has no legal authority to advance rights for only accused students.”

However, Andrew Miltenberg, a New York lawyer who represents students accused of sexual assault, told the Associated Press the Obama rule put the burden on the accused to prove the assault did not happen and that the system proposed by DeVos is much more fair. The Obama standard required only 50.1 percent certainty that an assault occurred and ignored the presumption of innocence, he said.

“Certainly, it’s a much more stringent standard and one that is less open to subjective interpretation,” Miltenberg said.

Other critics have said the Obama guidelines, which allowed either party to appeal, amounts to double jeopardy because they can be tried for the same crime twice.

The Associated Press contributed to this report.

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