Education Secretary Betsy DeVos dismantled federal guidelines for how colleges and universities should respond to sexual assault cases Friday, leaving campuses in Minnesota and across the country to review the sweeping changes they have made in recent years.
The move makes good on a pledge DeVos made this month to rescind Obama-era rules outlined in the 2011 Dear Colleague Letter on Sexual Violence, which required schools to investigate campus sexual assault complaints and detailed how they should conduct disciplinary proceedings.
A two-page letter from Candice Jackson, the Department of Education’s acting assistant secretary for civil rights, announced the change. The letter also said the department is withdrawing the 2014 Questions and Answers on Title IX and Sexual Violence, which expanded on the Dear Colleague Letter.
“The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students — both accused students denied fair process and victims denied an adequate resolution of their complaints,” Jackson’s letter said.
Critics of the guidance said it established a disciplinary process that was unfair to accused students. They have applauded DeVos’ efforts to roll it back.
“For a long time, people have been talking about how broken the current system is,” said defense attorney Ryan Pacyga. “It looks like what the department is trying to do is take a look at what is working in this process, what is not working and what can be improved upon so that it’s a fair process for everybody involved.”
Advocates for survivors of campus sexual assault, meanwhile, are raising concerns about what the change will mean for those students. Caroline Palmer, public and legal affairs manager at the Minnesota Coalition Against Sexual Assault, said Friday morning that she was already getting e-mails of concern from people across the country.
“There was so much effort and so much work put in over the years to try and improve the campus response, to make sure that victims were being heard, to make sure that there was education and just general awareness of this issue,” Palmer said. “It feels a little bit like that’s all been taken down for the moment, and I think there’s a lot of uncertainty about what’s going to come next.”
DeVos’ office is planning to seek public feedback to develop new rules. In the meantime, the Education Department is referring campuses to a Q&A released in tandem with Jackson’s letter, as well as federal guidelines on campus sexual harassment that are more than a decade old.
Kathryn Nash, an attorney with Gray Plant Mooty who has participated in discussions with Jackson and others about rolling back the Obama-era regulations and implementing new ones, said the new Q&A offers an idea of what the new federal rules might look like.
The 2011 Dear Colleague Letter gave colleges and universities some flexibility in adjudicating sexual assault cases; the Q&A guidelines give them more. Key changes include elimination of a 60-day timeline for resolving complaints, the option to allow only the accused student to appeal a ruling and the option to use a higher evidence standard when deciding a case, Nash said.
The Dear Colleague Letter required colleges and universities to use a “preponderance of the evidence” standard in sexual assault investigations. That standard, used in civil cases, found an accused student to be in violation of their campus sexual assault policy if evidence showed it was more likely than not that a sexual assault occurred.
Now that the Dear Colleague Letter has been withdrawn, colleges can choose to use a “clear and convincing evidence” standard, which is used in both civil and criminal cases and requires more evidence that a sexual assault occurred.
Having to choose between two evidence standards puts schools in a tough spot, said Carl Lehmann, general counsel at St. Olaf College.
“The department didn’t do us any favors by not prescribing a standard, and by leaving it up to schools to decide,” he said. “We’re going to need to listen to our community, we’re going to need to review our policy and decide what we believe is the appropriate standard in our cases.”
Kevin Randolph, a former sex crimes investigator with the University of Minnesota Police Department, said campus sexual assaults can be particularly difficult to prove because the alleged victim and assailant usually know each other — they may have even been in a romantic relationship. The lower standard used in campus investigations, which can result in expulsion, offers a good alternative to the criminal process, he said.
Advocates wait and see
In a statement Friday, DeVos said “the era of rule by letter is over.”
“The Department of Education will follow the proper legal procedures to craft a new Title IX regulation that better serves students and schools,” she said.
Campus officials and advocates on both sides of the issue are waiting to see exactly what that means.
Sherry Warner Seefeld, who co-founded the nonprofit Families Advocating for Campus Equality (FACE) after her son was accused of sexual assault and expelled from his university, applauded the education secretary’s actions but said there’s more work to be done.
“Nothing really has changed for us, because policy hasn’t changed, and the impact of policy hasn’t changed,” she said.
Survivor advocates, meanwhile, are gearing up to advise students who report sexual assaults, and to encourage individual campuses to keep the Obama-era regulations in place.
“Honestly, a lot of survivors I’m working with who are actively involved in a campus assault investigation are pretty scared right now for what that will mean for them,” said Abby Honold, a survivor of campus sexual assault who graduated from the University of Minnesota in 2016 and has gone public about her experience. “But right now, a lot of rights are still protected.”