Last month, Education Secretary Betsy DeVos announced that she would rescind a key government policy related to campus sexual assault. Sources report that she did this in an effort to give colleges more freedom to balance the rights of students who are accused of sexual assault with the need to crack down on sexual misconduct on college campuses.
This new policy is a highly controversial move and is part of one of the fiercest battles in higher education today. Overturning the Obama administration’s policies, conservatives say, is necessary, because in an effort to get colleges and universities to take sexual assault more seriously, Democrats have created a system that treated the accused unfairly.
“The most controversial portion of the Obama-era guidelines had demanded colleges use the lowest standard of proof, ‘preponderance of the evidence,’ in deciding whether a student is responsible for sexual assault, a verdict that can lead to discipline and even expulsion,” Stephanie Saul and Kate Taylor write for The New York Times. “The Education Department said colleges were free to abandon that standard and raise it to a higher standard known as “clear and convincing evidence.”
This can have significant impacts on college assault cases.
“Currently, most colleges and universities use the standard of preponderance of the evidence which was recommended by the previous administration’s Department of Education,” the legal experts at Coastal Law explain. “A preponderance of the evidence means “more likely than not,” or 51%, and it is the standard of proof used in most civil cases such as auto accidents or other personal injury claims.”
They continue, saying, “Under the new Department of Education guidelines, this standard would be changed to ‘clear and convincing evidence.’ Although clear and convincing evidence is not as high as the burden required in criminal cases, ‘beyond any reasonable doubt,’ it does add some additional protection for the rights of the accused in college campus sexual assault cases.”
This new move has long been sought out by advocates for those accused of sexual misconduct, most of whom are males, complaining that female accusers have been given an unfair advantage in campus judicial processes.
“The campus justice system was and is broken,” said Robert Shibley, the executive director of the Foundation for Individual Rights in Education. “With the end of this destructive policy, we finally have the opportunity to get it right.”
Many government officials have begun speaking out about these new guidelines.
Janet Napolitano, who has served as president of the University of California system and a Homeland Security secretary in the Obama administration, said in a recent statement that the Department of Education’s announcement would “in effect weaken sexual violence protections, prompt confusion among campuses about how best to respond to reports of sexual violence and sexual harassment, and unravel the progress that so many schools have made.”
Fatima Gross Graves, who serves as president of the National Women’s Law Center, agrees, expressing that DeVos’s policies could have a “devastating” impact on students and schools throughout the country.
“It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law and make campuses less safe,” she said in a statement.
Campus sexual assault has been a controversial topic over the past few years, and it’s not hard to see why. One in four women is the victim of sexual assault on college campuses in the United States. Many reports indicate that there is a significant backlog in testing rape kits, preventing victims from seeking justice. In some cases, victims suffer from PTSD as a result of their assault, but may have few opportunities to seek mental health treatment. Additionally, there is a stark lack of sexual health education in the U.S. All in all, there are a lot of structures in place that make it nearly impossible for victims to seek justice in this country.
While the future of these cases is in flux, it’s difficult to surmise whether victims will be able to access fair treatment in a court system that already prioritizes perpetrators. Time will tell whether or not DeVos’s policies help or hurt students in the future.