Utah college and university students who experience rape and sexual assault may have a harder time proving their case, under new instructions issued by the U.S. Department of Education.
Education Secretary Betsy DeVos on Friday revoked a series of Obama-era rules — outlined in a 2011 memo known as the “Dear Colleague Letter” — while providing new, partial directions in their stead until the Education Department can complete a formal review of Title IX, a federal law that prohibits sex discrimination in higher education.
The new rules, while incomplete, provide greater flexibility to colleges and universities than the Dear Colleague Letter on how they handle assault cases, while also emphasizing the due-process rights of the accused.
“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” DeVos said in a statement. “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.”
Most notably, under DeVos’ new guidance, schools may now choose whether an accused’s guilt in a sex assault investigation will be determined based on a “preponderance of evidence” or “clear and convincing evidence.”
The Utah System of Higher Education, or USHE, requires its campuses to use the “preponderance of evidence” standard, in keeping with administrators‘ preferences and with the Obama administration‘s guidelines, assistant USHE commissioner Geoff Landward said.
But Landward said those policies will likely be reviewed in light of the new flexibility granted by the Department of Education and new instructions that all student misconduct — sexual or otherwise — be adjudicated with the same burden of proof.
“The difference between the two standards of proof is not insignificant,” Landward said, “so this is not an easy decision that we have to make.”
Both the “preponderance of evidence” and “clear and convincing evidence” standards are lower than the “beyond a reasonable doubt” threshold used in the U.S. criminal justice system. But the burden for an alleged victim to demonstrate “clear and convincing” evidence is higher than a “preponderance” of the evidence, which translates to an alleged incident being more likely to have occurred than not.
S. Daniel Carter, president of SAFE Campuses LLC, said a “preponderance” is generally understood to mean that misconduct is more than 50 percent likely to have happened, while “clear and convincing” suggests a likelihood of 75 percent or 80 percent.
“The most fair way to determine a case is what is as close to 50-50 as possible,” Carter said.
The new guidelines from DeVos also state that campuses are not required to provide an appeals process in sex assault investigations. And if appeals are allowed, the rules specify that option should be made available only to the accused party or both parties, but not solely to alleged victims.
State Rep. Kim Coleman, R-West Jordan and a sponsor of campus sexual assault legislation, said that guidance is in keeping with accepted practice in criminal courts.
“We have a valued principle of criminal justice that allows a convicted person to appeal,” Coleman said, “and an exonerated person to be free from repeated attempts to convict.”
Coleman said a higher evidentiary burden could be appropriate due to the seriousness of sexual assault allegations and the potential for lifelong impact to the accused. But, she added, the flexibility to select between the two standards could lead to discrepancies between how different college and universities approach the issue.
“Does that mean it could easier to ‘convict‘ a person at some schools than others?” she asked.
USHE updated its Title IX policies last summer, making official the “preponderance of evidence” standard and adopting a series of due process requirements, such as the ability of both parties to work with an attorney or other representatives.
The new Department of Education guidelines require that an accused student be given sufficient detail about the allegations against them — including the identify of their accuser and date and location of the alleged incident — prior to a hearing. And campuses are now allowed to conduct mediation if both parties agree, an option prohibited by the Obama-era rules.
The new rules also state that disciplinary sanctions taken against a guilty party should take into account “the impact of separating a student from her or his education.”
Carter said the changes provide explicit protections for accused students that go well beyond creating equity between all parties.
“It was not necessary, to address the concerns of the accused, to throw institutions and survivors into the tumult and uncertainty that they have with their guidance today,” he said.
He said he did not anticipate immediate changes at most campuses. The “preponderance of evidence” standard was in place at most schools before the Dear Colleague Letter, Carter said, and any policy changes now would likely be postponed until the summer months.
“The school year has already begun,” he said. “The policies that they have put in place for this year are in place.”
Carter said it is important to remember that Title IX has not been revoked and that many of the victim-oriented protections in the 2011 Dear Colleague Letter were later added to federal law.
“Survivors still have those protections, and institutions still have an obligation to provide them,” he said.
Landward, with the Utah System of Higher Education, said the latest changes do not present a conflict with current practice on the state’s campuses, and that there is no immediate need for Utah procedures to be updated.
He said the changes will spark discussion with campus and community leaders about any revisions under the new policies. But USHE is confident, Landward said, that the due process rights of Utah students are currently addressed.
“The likeliest change you‘ll see is that standard of proof, if there is a change,” Landward said. “The rest of it is not really much different from what we’re already doing.”
At Brigham Young University, Title IX coordinator Tiffany Turley said administrators are already in the process of overhauling campus policies related to sexual assault and misconduct.
Those proposals currently include the “preponderance of evidence” standard for investigations, Turley said, but the new Department of Education guidelines allow for a review of whether that standard is most appropriate for the LDS Church-owned school.
“Since we‘re rewriting the whole policy anyway right now, it makes sense that this is a good time to have that discussion,” Turley said.
BYU recently adopted an amnesty policy after reports surfaced of students being investigated for breaking school rules after reporting sexual assault. The university has since separated its Title IX office from its Honor Code office, which oversees compliance with campus rules prohibiting alcohol and drug use and premarital sex.
BYU is one of four schools — including the University of Utah, Westminster College and Dixie State University — currently under investigation by the Department of Education’s Office for Civil Rights for potentially violating Title IX.
HOW TITLE IX EXPECTATIONS FOR SCHOOLS HAVE CHANGED
The Department of Education has withdrawn 2011 and 2014 guidance for how schools should respond to sexual violence under Title IX, and put interim guidelines in place while it works on new regulations. Much of the change is elimination or scaling back of guidance — the Obama administration’s recommendations ran to 65 pages, while the interim guidelines are seven pages. Here are some other, direct changes.
The explanation of a school’s responsibility to address sexual misconduct is less specific
Previous: “When a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate steps to investigate what occurred. If an investigation reveals that sexual violence created a hostile environment, the school must then take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence and, as appropriate, remedy its effects. But a school should not wait to take steps to protect its students until students have already been deprived of educational opportunities.”
New: “Whether or not a student files a complaint of alleged sexual misconduct or otherwise asks the school to take action, where the school knows or reasonably should know of an incident of sexual misconduct, the school must take steps to understand what occurred and to respond appropriately. In particular, when sexual misconduct is so severe, persistent, or pervasive as to deny or limit a student’s ability to participate in or benefit from the school’s programs or activities, a hostile environment exists and the school must respond.”
Schools are no longer required to provide services during investigations — and measures should not favor the alleged victim
Previous: “Title IX requires a school to take steps to ensure equal access to its education programs and activities and protect the complainant as necessary, including taking interim measures before the final outcome of an investigation. …In general, when taking interim measures, schools should minimize the burden on the complainant. For example, if the complainant and alleged perpetrator share the same class or resident hall, the school should not, as a matter of course, remove the complainant from the class or housing while allowing the alleged perpetrator to remain without carefully considering the facts of the case.”
New: “It may be appropriate for a school to take interim measures during the investigation of a complaint. In fairly assessing the need for a party to receive interim measures, a school may not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make such measures available only to one party. Interim measures should be individualized and appropriate based on the information gathered by the Title IX Coordinator, making every effort to avoid depriving any student of her or his education.”
There is no recommended timeline to complete an investigation
Previous: “Based on [Office for Civil Rights] experience, a typical investigation takes approximately 60 calendar days following receipt of the complaint. Whether OCR considers complaint resolutions to be timely, however, will vary depending on the complexity of the investigation and the severity and extent of the harassment.”
New: “There is no fixed time frame under which a school must complete a Title IX investigation. OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.”
Informal mediations may be allowed in cases of sexual assault
Previous: “Grievance procedures generally may include voluntary mechanisms (e.g., mediation) for resolving some types of sexual harassment complaints. … In cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis.”
New: If all parties voluntarily agree to participate in an informal resolution that does not involve a full investigation and adjudication after receiving a full disclosure of the allegations and their options for formal resolution and if a school determines that the particular Title IX complaint is appropriate for such a process, the school may facilitate an informal resolution, including mediation, to assist the parties in reaching a voluntary resolution.
Schools may choose to use a stricter standard of evidence
Previous: “The school must use a preponderance-of-the-evidence (i.e., more likely than not) standard in any Title IX proceedings, including any fact-finding and hearings.”
New: “The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.”
Schools have a new focus when deciding how to discipline students
Previous: Effective remedial action may include disciplinary action against the perpetrator, providing counseling for the perpetrator, remedies for the complainant and others, as well as changes to the school’s overall services or policies. All services needed to remedy the hostile environment should be offered to the complainant.
New: Disciplinary sanction decisions must be made for the purpose of deciding how best to enforce the school’s code of student conduct while considering the impact of separating a student from her or his education. Any disciplinary decision must be made as a proportionate response to the violation.
Schools may allow only accused students to appeal the findings of an investigation
Previous: “If a school chooses to provide for an appeal of the findings or remedy or both, it must do so equally for both parties.”
New: “If a school chooses to allow appeals from its decisions regarding responsibility and/or disciplinary sanctions, the school may choose to allow appeal (i) solely by the responding party; or (ii) by both parties, in which case any appeal procedures must be equally available to both parties.”