Betsy DeVos, the education secretary has rescinded the Obama-era guidance on how schools should handle investigations of sexual assaults and will be replacing the policy with guidelines that will help “treat all students fairly.”
DeVos has been heavily critical of the guidance by the Obama Administration and last month, the education secretary announced that she planned to replace the policy as part of the “rethink school” tour.
A temporary guidance has been put in place while the Education Department develops the new official guidelines.
“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” said DeVos in a statement Friday. “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.”
The Obama administration’s guidance, Title IX had been criticized for forcing colleges to respond to all complaints of sexual assault from any student, even if there is a separate criminal inquiry.
Critics claims this denies due process for the accused, which is much different than our criminal courts where guilt must be proved beyond a reasonable doubt. Instead, these cases are based on if it’s “more likely than not” that the assault was committed.
The department instructed that allegations that were “severe, persistent or pervasive” and that the investigations were to be led by an individual free of conflicts of interest and to be completed in a “timely manner.”
Often these investigations were hastily completed with a tremendous amount of evidence against the accused.
As the Department of Education said the former guidance “ignored notice and comment requirements, created a system that lacked basic elements of due process and failed to ensure fundamental fairness.”
If a college didn’t follow these guidelines outline in the 2011 department memo, the institution could be punished by losing federal funding.
But now DeVos has rescinded the 2011 letter saying that “the era of rule by letter is over.”
The temporary guideline mimics the former 2001 guidance from the Office for Civil Rights.
“The department’s interim guidance emphasizes the important of fairness and impartiality in campus proceedings while relying heavily on prior guidance from [the Office for Civil Rights] dating back to 2001,” said a senior department official.
Before the Education Department has even had the chance to release the new guidelines, there has been tremendous backlash claiming that the removal of the Obama-era guidance is a sexual discrimination issue.
“This decision shows the Trump Administration’s utter disregard for survivors of sexual assault,” said Rep. Nita Lowey (D-N.Y.) in a statement. “The effect of this policy reversal will be to delegitimize and suppress the voices of survivors, who are being told by this administration that they will be met with skepticism. Shame on the Trump Administration.”
However, several groups like the Foundation for Individual Rights in Education (FIRE) applauded the decision to re-write the guidelines.
“The campus justice system was and is broken,” said Robert Shibley, executive director at Foundation for Individual Rights in Education (FIRE) in a statement. “Fair outcomes are impossible without fair procedures. When the government sprang its 2011 letter on colleges and students without warning, it made it impossible for campuses to serve the needs of victims while also respecting the rights of the accused. With the end of this destructive policy, we finally have the opportunity to get it right.”
DeVos believes this issue deserves much more than a letter.
“The Department of Education will follow the proper legal procedures to craft a new Title IX regulation that better serves students and schools,” said DeVos.