But it’s hard to imagine the debate over this issue is anywhere near settled. As with any move that touches the livewire of campus sexual assault, parties across the ideological spectrum have weighed in.
The new temporary guidelines change the standard of evidence by which accused students are found guilty. A previously-followed set of 2011 guidelines, known as the Dear Colleague letter, mandated that colleges apply a “preponderance of evidence” standard to sexual misconduct cases. That means that for a person to be found guilty of sexual misconduct, it has to seem more likely than not that they committed a violation. The new guidelines, available for perusal here, encourage schools to apply a higher “clear and convincing” standard.
The Education Department guidelines do not mandate that all colleges adopt the higher standard; they are free to continue using the “preponderance of evidence” standard if they wish.
Know Your IX, a group that advocates for more aggressive prosecution of campus sexual assault, said in a scathing statement that “This practice is discriminatory against survivors, as it permits schools to accord more value to the education of a respondent than that of a complainant.”
The new standards also give schools the opportunity to determine whether the accused is allowed to appeal the ruling, while the accuser is denied the right to appeal. That means that in some cases, an accusing student would not be allowed to have the case revisited if their alleged assailant is found not responsible. The Department of Education memo claims that this is part of encouraging due process for the accused; in the Justice system, the accused are not allowed to be tried twice for the same crime if they’re found not guilty.
But Know Your IX’s Sejal Singh sees this as allowing more process for the accused while denying help to survivors. “Survivors and advocates have been warning for months that DeVos' goal is to stack sexual assault investigations against survivors—and that's precisely what this guidance does,” Singh tells The Daily Beast. Many other advocates have claimed this move “protects rapists.”
Due process advocates feel differently. Susan Kruth, The Foundation for Individual Rights in Education (FIRE) Senior Programs Officer, writes, “To say that procedural safeguards ‘protect rapists’ assumes that all accused students are, in fact, rapists. This is incompatible with a core principle of our justice system: that accused people should be presumed innocent until proven guilty and subjected to punishment.”
Another change that has victims advocacy groups rattled is the proposed removal of time limits for investigations. Under the Obama-era guidelines, schools had 60 days to conduct an investigation. The new guidelines simply call for a “good-faith effort.” In the past, schools often dragged their feet on investigating cases for so long that the accused or accusing party would have dropped out or graduated.
Singh found this change most disturbing of all. “Before the Education Department began robustly enforcing Title IX, schools would pressure survivors to go through an informal ‘mediation’ process rather than investigating (and disciplining) rapists on campus,” Singh says.
“I've spoken with survivors whose schools told them that a formal investigation just wasn't worth it, and they should go through mediation instead, even if that meant being on campus with their rapists for years. I've spoken to survivors [whose schools] "mediated" complaints by putting survivors in a room with their rapists and telling survivors they should just forgive their rapists. I've spoken to survivors whose schools' mediations involved survivors and perpetrators praying together.”
FIRE’s Susan Kruth offered a different take. “[D]eclining to hold schools to an absolute deadline will allow them to, if necessary, take the time to reach a more accurate and just result,” she says. “Particularly in complicated cases, for example, ones with multiple alleged perpetrators or victims, a limit of 60 days might force schools to rush through the investigation, to everyone's detriment.”
DeVos’s guidelines aren’t final; they’re temporary placeholders for an undetermined time period during which the entire process is open for public comment. But due to the indefinite nature of the comment period, today’s statement throws schools into a bit of a limbo. If DeVos permanently rolls back the Obama-era guidelines, schools will have to change existing mechanisms they spent time and money to put in place to address sexual assault, a process that will take more time and resources at some undetermined point in the future. Sexual assault advocates worry this could harm survivors; due process advocates warn that denying the accused due process doesn’t serve either party. Today’s move adds additional uncertainty to students who are currently on campus.
Among all this uncertainty and speculation, one thing’s certain: DeVos’s guidelines, albeit temporary, crystalize how fraught this issue is, and how the process of getting from where we are currently to a system that better serves both the accusers and accused is a long way off. The system needs fixing, but it’s unclear if DeVos is equipped to do it.