Last week, Education Secretary Betsy DeVos took the first step in walking back the Obama Administration’s 2011 Dear Colleague letter. While the Department of Education (DOE) is expected to release interim guidelines during the review and comment period, there is considerable uncertainty about what comes next. Below is our take on what colleges and universities can expect in the coming weeks.
What could change
Standard of proof: The preponderance of evidence standard established by Dear Colleague has long been a point of contention. This standard is generally defined as a 50.1% chance that the accused individual was responsible. Given the comments made by DeVos in last week’s speech and the reports from the recent summer listening sessions, the DOE will certainly focus here in its review and possibly recommend returning to the beyond a reasonable doubt standard for campus hearings.
Hearing process: The DOE will likely release guidance formalizing the role of legal advisors for both parties in campus hearings, rationalizing that this is necessary to ensure due process for all involved students. However, some are concerned this will result in increased legal fees for students and place an undue burden on administrators at colleges and universities.
Financial penalties: Under Dear Colleague, institutions under investigation for possible violation of Title IX could face financial penalties. We anticipate that will be reversed under the DOE review.
States vs. Federal Government: Several states, such as California, New York, and Illinois, enacted legislation that went beyond what was required by federal rules. A rollback leaves the door open for conflicting federal and state laws and it is unclear how aggressively the current administration would pursue conflicts.
What won't change
Pressure to address the issue: Dear Colleague sparked a national conversation, empowered survivors, and turned a spotlight on campus sexual violence. Regardless of the outcome of the DOE's review, students, parents, alumni, and advocacy organizations will continue to focus on this issue and will pressure higher education leaders to take action.
Supporting students on campus: Colleges and universities must continue their efforts to support students who have experienced sexual violence. Key elements here include encouraging students to report incidents, connecting individual students with available resources, and ongoing training initiatives for the entire campus community.
What to do now
Make your opinions heard: Monitor the DOE's efforts and seek out details about the public comment period. In contrast to the issuance of the 2011 Dear Colleague letter, there will be a window of opportunity here for college leaders, faculty, staff, and students to provide input.
Communicate with students, faculty, and staff: Last week's events have produced countless headlines, tweets, and blog posts. It's critical that university leaders communicate to the campus community that the institution remains committed to seriously addressing the issue of campus sexual violence. We recommend four key messages:
- Remind the campus community about the available resources for students, faculty, and staff who have experienced or are affected by sexual violence.
- Emphasize students should feel comfortable and confident coming forward to report an issue or concern on campus.
- Reiterate the importance of ongoing sexual violence training efforts for faculty, students, and staff.
- Review your institution’s current policies on investigations and adjudications.
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Student Activism Resource Center