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DeVos Ditches Obama-Era Campus Assault Rules, But Problems Lie Ahead


Our long national nightmare is over—or is it?

On Friday, Education Secretary Betsy DeVos rescinded Obama-era guidance on sexual assault that ensured more innocent students accused of the abhorrent crime would be found responsible and expelled. Earlier this month, DeVos announced she would seek comment from stakeholders to improve the way schools adjudicate accusations of sexual assault.

DeVos at the time mentioned the need for due process for the accused and better treatment of accusers, since all sides agree even the Obama-era guidance did not solve all the problems. (Supporters of the Obama-era guidance went apoplectic after DeVos’s speech, however, claiming she was siding with rapists over victims, an absurd notion.)

In place of the Obama-era guidance, known ominously as the 2011 “Dear Colleague” letter, as well as a 2014 question-and-answer document, schools will now have to adhere to 2001 and 2006 guidance from the Education Department.

‘A Deprivation of Rights’

In her letter rescinding the previous guidance, Acting Assistant Secretary for Civil Rights Candice Jackson wrote of the problems caused by the Obama-era guidance. The 2011 guidance forced schools to adopt a low, “preponderance of evidence” standard for adjudicating sexual assault, when schools had previously been allowed to use the more stringent “clear and convincing” standard. To avoid federal lawsuits or yanked funds, schools were required to adopt the lower standard, even though such regulatory changes were required by law to go through a notice and comment period and the 2011 document did not.

Jackson also lamented the old guidance’s insistence that accusers have the right to appeal decisions, effectively undermining double jeopardy. Schools were also discouraged from allowing parties to cross-examine each other, claiming such a tool of due process could violate Title IX, the anti-discrimination statute from which all these rules sprung.

Schools were also required, under Obama-era guidance, to create quasi-judicial proceedings (stacked against the accused both in requirements and culture) and forbade them from relying on law enforcement to investigate. Schools also had to investigate and adjudicate in a short amount of time, and stated that any due process protections must not “unnecessarily delay” the proceedings.

“The 2011 and 2014 guidance documents may have been well-intentioned, but 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,” Jackson wrote. “The guidance has not succeeded in providing clarity for educational institutions or in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires. Instead, schools face a confusing and counterproductive set of regulatory mandates, and the objective of regulatory compliance has displaced Title IX’s goal of educational equity.”

The Obama Rules Changed Campus Culture

Now, I’m sorry for being a pessimist, because this really is good news, but there is still a long, long road ahead for colleges and students. You’re going to see a lot of media screeching that DeVos and her department are making it easier for men to rape, or sending us back to the dark ages when rape was supposedly allowed on college campuses. This is not true.

Even with the older guidance, opponents of DeVos (who, honestly, would oppose anything that didn’t strengthen the dangerous mantra of “always believe the accuser”), should know that they have won the culture war over sexual assault on college campuses. In the years since the Obama guidance was posted, activists—along with the media and legislators—have succeeded in expanding the definition of sexual assault.

Now, essentially, if a woman says she was raped, she was raped. Drunken hookups are now rape, even if both parties were equally drunk. Regretted sex is now rape, because, in the words of one activist, students “need some time to reflect” before deciding to make an accusation. There is virtually no way for a student—especially a male student—to have consensual sex on campuses, because if the other person claims it wasn’t consensual, that’s all a school needs because they want to show they take sexual assault seriously.

Even with the new guidance, some college presidents and states have declared they will continue to follow the Obama-era guidelines. In January, a panel of college presidents agreed with the parts of the Obama-era guidance that have become so controversial. John Jasinski, president of Northwest Missouri State University, said his school would continue to use the Obama-era guidance regardless of what DeVos did. Just last week, the California legislature passed a bill that would codify the Obama-era guidance for the state. Gov. Jerry Brown will likely sign.

I’ve written about this issue for years, so I’m glad to see changes coming. DeVos’s speech earlier this month wasn’t just about accused students (although the pendulum has swung too far against them, when many may be innocent), it was also about accusers, who haven’t been properly protected under Obama guidance. The best thing a school can do for an accuser isn’t to kick her rapist off campus, so he’s free to roam the streets and rape others. That’s the worst outcome of the criminal justice system.

And without the involvement of law enforcement, schools can’t compel the accused (or the accuser, in cases of false accusations), to turn over cell phone or other evidence that could prove what happened one way or the other. Poorly trained administrators trained to believe the accuser are no substitute for law enforcement.

This is absolutely a good step forward, but it will be years before schools readjust and our culture realizes that not all sex is rape.