From Preponderance of the Evidence to Clear and Convincing: DeVos’ Rollback of Obama-era Sexual Assault Guidelines

By: Tori Zicker, L’18

 

In 2011, the Department of Education released a Dear Colleague Letter, outlining the requirements and obligations of universities with respect to Title IX and its implementing regulations regarding sexual assault and sexual harassment.[1] This letter, implemented during the Obama Administration, lowered the standard of proof for sexual assault cases to a preponderance of the evidence standard.[2] Some criticized this action, believing it to be over-reaching, while others praised it.[3]

On September 7, 2017, Betsy DeVos, the new Secretary of Education, announced she would be rewriting the rules on campus sexual assault. Recently, she rescinded the Obama-era guidelines, including the one that lowered the standard of proof to a preponderance of the evidence.[4] DeVos declared that schools are free to abandon that standard and are even able to raise the standard to a clear and convincing evidence one, if they so choose.[5] Under a clear and convincing standard, it would have to be found that it was highly probable or reasonably certain that the sexual assault occurred.[6] In contrast, a preponderance of the evidence standard only requires a finding that it is more likely than not that the sexual assault occurred.[7] The preponderance standard is used in most civil trials and carries a lesser burden of proof than a clear and convincing standard.[8] Until new rules are enacted in a few months, schools are free to choose which standard to use in sexual assault and harassment hearings.[9] New rules could require all schools to use the clear and convincing standard in all hearings on sexual assault.

Some people are praising this action by DeVos, claiming the Obama-era guidelines created “kangaroo courts” and deprived the accused of due process.[10] Many criticized the use of the preponderance standard because it used a lower burden of proof in an action that could result in disciplinary actions or expulsion, creating lifelong effects for the accused student.[11] However, using a preponderance standard is supported by many, claiming it made schools take sexual assault more seriously.[12] This change is seen by some as a setback that will hurt students and “discourage students from reporting assaults.”[13]

DeVos claims that rewriting these rules will protect not only the victims, but also the accused. Over the summer, she held closed meetings with accused students and survivors of sexual assault. After these meetings, survivors of sexual assault expressed unease, while accused students exhibited optimism.[14] According to the National Sexual Violence Resource Center, the overall percentage of falsely reported rapes ranges from only 2-10%.[15]

While many agree that sexual assault on college campuses is a pervasive issue, critics of DeVos are skeptical that the new rules will adequately protect victims.[16] DeVos claims that the interim rules will “confront these horrific crimes and behaviors head on” and that “there will be no more sweeping [these crimes] under the rug.”[17] As of this writing, DeVos has not announced what her new rules will be, but she has stated the rules will “aim to treat students fairly.”[18]

 

[1] Russlyn Ali, Dear Colleague, U.S. Dep’t of Educ. (Apr. 4, 2011), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.

[2] Id. at 10.

[3] Sophie Tatum, Education Department Withdraws Obama-era Campus Sexual Assault Guidelines, CNN (Sept. 22, 2017 at 3:09 PM), http://www.cnn.com/2017/09/22/politics/betsy-devos-title-ix/index.html.

[4] Stephanie Saul & Kate Taylor, Betsy Devos Reverses Obama-era Policy on Campus Sexual Assault Investigations, N.Y. Times (Sept. 22, 2017) https://www.nytimes.com/2017/09/22/us/devos-colleges-sex-assault.html?rref=collection%2Fsectioncollection%2Feducation.

[5] Id.

[6] Ali, supra note 1, at 11.

[7] Ali, supra note 1, at 11.

[8] Preponderance of the Evidence, Black’s Law Dictionary (10th ed. 2014).

[9] Saul & Taylor, supra note 4.

[10] Anna Dubenko, Right and Left React to Betsy Devos’s Changes to Campus Sex Assault Rules, N.Y. Times (Sept. 12, 2017) https://www.nytimes.com/2017/09/12/us/politics/betsy-devos-title-ix.html?rref=collection%2Fsectioncollection%2Feducation.

[11] Stephanie Saul & Dana Goldstein, Betsy DeVos Says She Will Rewrite Rules on Campus Sexual Assault, N.Y. Times (Sept. 7, 2017) https://www.nytimes.com/2017/09/07/us/devos-campus-rape.html?rref=collection%2Fsectioncollection%2Feducation.

[12] Jeannie Suk Gersen, The Trump Administration’s Fraught Attempt to Address Campus Sexual Assault, New Yorker (July 15, 2017)

[13]NWLC Reacts to Education Department’s Intermin Rule, Nat’l Women’s L. Ctr. (Sept. 22, 2017) https://nwlc.org/press-releases/nwlc-reacts-to-education-departments-interim-rule/.

[14] Katie Reilly, Accused Students Found Betsy DeVos’ Meeting on Campus Sexual Assault ‘Uplifting’. Victims’ Advocates Do Not, Time (last updated: July 16, 2017 at 9:38 PM) http://time.com/4857377/betsy-devos-campus-sexual-assault-meeting/.

[15] Statistics About Sexual Violence, Nat’l Sexual Violence Res. Ctr. (2015) https://www.nsvrc.org/sites/default/files/publications_nsvrc_factsheet_media-packet_statistics-about-sexual-violence_0.pdf.

[16] Ruth Marcus, Betsy DeVos Could Change Sexual Assault Policy for Better, Wash. Post (Sept. 8, 2017) https://www.washingtonpost.com/opinions/betsy-devos-could-change-sexual-assault-policy-for-the-better/2017/09/08/893adc04-94ce-11e7-89fa-bb822a46da5b_story.html?utm_term=.259aacc2ce72.

[17] Department of Education Issues New Interim Guidance on Campus Sexual Misconduct, U.S. Dep’t of Educ. (Sept. 22, 2017) https://www.ed.gov/news/press-releases/department-education-issues-new-interim-guidance-campus-sexual-misconduct.

[18] Id.

 

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