Trump administration rescinds Obama-era guidance on campus sexual assault

The Trump administration on Friday withdrew Obama-era guidance on how schools should respond to sexual violence complaints, giving them flexibility to use a higher standard of evidence when judging sexual misconduct cases.

The action followed through on a pledge Education Secretary Betsy DeVos made on Sept. 7 to replace what she called a “failed system” of civil rights enforcement on matters related to campus sexual assault. In her view, the government failed under President Barack Obama to find the right balance in protecting the rights of victims and the accused.

Under Obama, the Education Department’s Office for Civil Rights had declared in 2011 that schools should use a standard known as “preponderance of the evidence” when judging sexual violence cases that arise under the antidiscrimination law known as Title IX.

Common in civil law, the preponderance standard is lower than the “clear and convincing evidence” threshold that had been in use at some schools. Victim advocates viewed the April 2011 letter as a milestone in efforts to get schools to heed the longstanding problem of campus sexual assault, punish offenders and prevent violence.

Now, under President Trump, the Office for Civil Rights is declaring that schools may use either standard while the government begins a formal process to develop rules on the issue.

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

Friday’s action formally withdrew the civil rights office’s “Dear Colleague” letter of April 4, 2011, and a follow-up statement of “Questions and Answers” that was issued on April 29, 2014.

In a news release, the department said the interim guidance would require schools to address sexual misconduct that is “severe, persistent or pervasive,” and conduct investigations in a fair, impartial and timely manner. Schools will be allowed to have informal resolution to cases, through mediation, if appropriate and if all parties agree.

Laura L. Dunn, a lawyer with D.C.-based SurvJustice, said the department’s actions will allow colleges to give an unfair edge to the accused in sex discrimination cases. “This is simply unlawful, to flip a civil right on its head,” Dunn said in a statement. She said the department had acted beyond its authority.

Robert Shibley, executive director of the Foundation for Individual Rights in Education in Philadelphia, which opposed the 2011 letter, praised the development. “It’s a great day for fundamental fairness on campus,” Shibley said. He called it a “necessary but not sufficient step,” acknowledging that colleges retain control over their internal misconduct rules and proceedings.

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