DeVos Plans to Dismantle Standards for Campus Sexual Assault Investigations

By Christopher Coble, Esq. on September 11, 2017 | Last updated on March 21, 2019

Donald Trump's new Education Secretary Betsy DeVos announced plans to rescind a six-year-old policy issued by Barack Obama's administration that advised colleges and universities on how to handle sexual assault allegations on campus. "Washington has burdened schools with increasingly elaborate and confusing guidelines that even lawyers find difficult to understand and navigate," DeVos told a crowd at George Mason University. "That's why we must do better, because the current approach isn't working."

But DeVos wasn't as clear about what the new approach would look like as she was about rebuking the old approach. So where does that leave victims, alleged abusers, and schools trying to meet their legal obligations?

Out With the Old

In 2011, Obama's Department of Education issued what is known as a "Dear Colleague" letter, addressing the requirements of colleges and universities under Title IX of the Education Amendments of 1972 in regards to sexual violence on campus. Schools must "take immediate and effective steps to end sexual harassment and sexual violence," including a prompt investigation of any incident the school knows of or reasonably should know of, and apply a "preponderance of evidence" standard to determinations based on sexual harassment allegations.

According to DeVos, this system "has failed too many students." "Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved," she said, adding, "That's why we must do better, because the current approach isn't working."

In With What Now?

What the new approach will be, however, isn't immediately clear. DeVos announced plans to "launch a transparent notice-and-comment process" to formulate new guidance on sexual assault investigations, presumably to standardize procedural elements and protections across all schools. One of the issues that many, including the American Bar Association, have highlighted in prior critiques is the lack of due process protections for both victims and accusers in on-campus hearings, along with the lack of uniformity in schools' reporting, investigating, punishment, and appeals processes.

"We can do a better job of making sure the handling of complaints is fair and accurate," DeVos promised, but how that job will be done remains to be seen.

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