Betsy DeVos rolls back Obama-era guidelines for investigating campus sexual assault

The education secretary previously called the guidelines a "failed system."

Education Secretary Betsy DeVos speaks at George Mason University. (CREDIT: AP Photo/Jacquelyn Martin)
Education Secretary Betsy DeVos speaks at George Mason University. (CREDIT: AP Photo/Jacquelyn Martin)

Education Secretary Betsy DeVos on Friday rescinded a set of Obama-era guidelines for investigating campus sexual assault cases, the Associated Press reported. The department has implemented interim rules for the time being, which were outlined in a Dear Colleague letter the same day.

Previously, DeVos said the Obama-era rules were part of a “failed system” that punished those who had been “wrongfully accused.”

“There are men and women, boys and girls, who are survivors, and there are men and women, boys and girls who are wrongfully accused,” DeVos said in a speech at George Mason University in Arlington, Virginia in early September. “I’ve met them personally. I’ve heard their stories. And the rights of one person can never be paramount to the rights of another.”

DeVos Press Secretary Liz Hill told ThinkProgress’ Joshua Eaton at the time that the Obama-era guidance, which was issued back in 2011, would be replaced, but did not offer up further details.

“The Office for Civil Rights will work directly with schools to provide support and technical assistance,” she said.

In a letter on Friday, Acting Assistant Secretary for Civil Rights Candice Jackson claimed that the 2011 guidance had “led to the deprivation of rights for many students.”

“[B]oth accused students [have been] denied fair process and victims denied an adequate resolution of their complaints,” she added. According to the Los Angeles Times, the department said it was withdrawing the policy because “of criticism that it placed too much pressure on school administrators” as well and “favored alleged victims.”

Referring to the initial Obama-era “Dear Colleague” letter, Jackson continued,

The 2011 Dear Colleague Letter required schools to adopt a minimal standard of proof—the preponderance-of-the-evidence standard—in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing-evidence standard. The Letter insisted that schools with an appeals process allow complainants to appeal not-guilty findings, even though many schools had previously followed procedures reserving appeal for accused students. The Letter discouraged cross-examination by the parties, suggesting that to recognize a right to such cross-examination might violate Title IX.

The Letter forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis. The Letter provided that any due-process protections afforded to accused students should not “unnecessarily delay” resolving the charges against them.

…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.

Jackson concluded that the Education Department remained committed to “enforcing critical protections” but that it would do so in a “fair” and consistent manner.

According to the New York Times, the interim rules implemented on Friday allow campus officials to raise evidence requirements “to a ‘clear and convincing standard’ of proof.”

The original Obama-era policy, which was announced on April 4, 2011 by then-Vice President Biden, required schools to notify the Education Department’s Office for Civil Rights when harassment or sexual violence was found to have occurred and to designate a “reasonably prompt time frame” for investigating such matters, among other things.

In her speech at George Mason University on September 7, DeVos said the Obama administration had “weaponized the Office of Civil Rights to work against schools and against 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 added.

This story has been updated to include the latest information on the Education Department’s announcement.