Metro Weekly

Betsy DeVos rescinds Obama-era guidance on campus sexual assault

Critics say guidance favoring the accused could harm LGBTQ students, who face higher rates of assault

Betsy DeVos – Photo: Gage Skidmore, via Wikimedia.

On Friday, Education Secretary Betsy DeVos officially rescinded Obama-era guidance outlining how colleges should respond to and handle sexual assaults, arguing that the previous guidance was too slanted in favor of accusers, particularly women, and too harsh on those who were accused.

The Department of Education withdrew a 2011 “Dear Colleague” letter requiring all schools to adopt a “preponderance-of-the-evidence” standard when mediating disputes over alleged sexual assaults, reports The Hill.

Under that guidance, schools were expected to discipline an accused student if more than 50 percent of the evidence pointed to the likelihood that they had committed an assault.

DeVos has replaced a 2014 question-and-answer document outlining schools’ responsibilities with a new Q&A, setting forth temporary guidelines while the Trump administration drafts more permanent guidance.

DeVos had announced the department’s intention to revise those guidelines earlier this month, charging that the Obama-era guidance forced schools to set up “kangaroo courts” overseen by university officials who lack legal training, and had urged administrators to quickly resolve any complaints that were lodged.

The underlying implication of this criticism is that schools are being pressured to rush to judgment and unjustly penalize the accused, thereby placing mostly male students at higher risk of suspension or expulsion.

Other conservatives had criticized the previous guidance for insisting that schools allow accusers to appeal a “not guilty” finding, something that, historically, was reserved for accused students who were found guilty.

In the new Q&A document, the department’s Office of Civil Rights has said that schools may exercise their own discretion to apply either the preponderance-of-the-evidence standard favored by the Obama administration, or the “clear-and-convincing-evidence” standard, which requires that evidence shows that it is “highly probably or reasonably certain” that an accused person committed a crime.

The temporary guidance no longer requires all schools to allow appeals, but allows them leeway in choosing whether they will allow appeals from only accused students or from both parties involved in a dispute.

LGBTQ groups and allied women’s rights groups, who have already been highly critical of both Trump and DeVos, condemned the Education Department’s actions.

“With today’s announcement, Betsy DeVos and the Trump administration have clearly drawn a line in the sand, stating that they prefer it be more difficult for survivors of sexual assault to receive justice,” David Stacy, the director of government affairs at the Human Rights Campaign, said in a statement.

“LGBTQ Americans face disproportionate levels of sexual assault and violence,” Stacy added. “This unconscionable decision — coupled with the decision to rescind guidance aimed at protecting transgender students — sadly indicates that the Department of Education is no longer in the business of protecting students from harm.”

In a tweet criticizing the temporary guidance, GLAAD linked to an article from The Atlantic detailing how LGBTQ students experience higher rates of sexual assault or sexual harassment, particularly bisexuals, transgender individuals, and those who identify outside of the gender binary. GLAAD then wrote: “LGBTQ students experience harassment at disproportionately high rates. This will leave them even more vulnerable.”

The LGBTQ-friendly women’s advocacy group UltraViolet issued its own statement addressing its fears that the loosening of the Obama-era standards for investigating sexual assault allegations would lead to fewer victims to report incidents of rape or assault.

“America is in the midst of a national rape epidemic, with 1-in-4 women being sexually assaulted while on campus. Despite that terrifying reality, Betsy DeVos and Donald Trump are more concerned with protecting the rights of predators and abusers over the rights of survivors of sexual assault. Sadly, given President Trump’s history of bragging about sexual assault, this isn’t that surprising,” UltraViolet co-founder Nita Chaudhary said in a statement. 

“We’ve said this before, and will continue to say that there are no two sides when it comes to rape. Period,” added Chaudhary. “With sexual assaults routinely going unreported, un-investigated and unpunished, the scales are already heavily tipped in the favor of rapists. The idea that we need to focus more on the rights of the accused was almost laughable before this decision, now it’s just terrifying and dangerous.”

John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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