Since Sept. 22, there has been nothing but controversy surrounding the campus sexual assault debate.
On that day, Secretary of Education Betsy DeVos repealed former President Barack Obama’s Title IX guidance in exchange for guidance that has been met with criticism from some and cries of victory from others.
According to the 2017 Q&A on Campus Sexual Misconduct from the Department of Education Office for Civil Rights, schools will now have the option to either continue to use the preponderance of evidence standard, or a clear and convincing evidence standard.
This change reverses what was laid out in the 2011 Dear Colleague letter created under the Obama administration, which stated that the preponderance of evidence standard, a lower standard, was the correct standard of evidence schools should follow.
In the interim, schools still have the choice between which standard they want to follow. As long as the school’s policy and procedures comply with what the interim guidance states, no changes must be made.
The Equal Opportunity and Compliance Office at the University of North Carolina at Chapel Hill responded to the new guidance with this statement: “We have determined that our current policy and procedures comport with the interim guidance. Therefore, we will make no changes…to how the University responds…to any allegations of sexual violence, at this time.”
Along with this statement, UNC faculty Holly Lovern and Cassidy Johnson, the Gender Violence Service Coordinators, held an informational forum about the basics of Title IX on October 12, specifically addressing fears students may have under the new guidance.
When asked to interview about the new guidance, Johnson and Lovern gave no comment.
Organizations that advocate for the rights of the accused, especially the falsely accused, believe that these changes will result in fairer trials and greater justice.
Alice True, mother of a falsely accused son and founder of Save Our Sons, an organization that provides resources for the falsely accused, sees this guidance as a step toward justice for all, particularly the accused.
“DeVos is providing a fair and balanced trial for the person accused,” True said. “An accusation does not mean guilty.”
Along with Save Our Sons, the Foundation for Individual Rights in Education (FIRE) has advocated for the rights of students on college campuses in issues that breach their constitutional rights, with a recent focus on due process in sexual assault cases.
Susan Kruth, Senior Program Officer and licensed attorney for FIRE, believed that the old guidance allowed for too much grey area in sexual assault investigations because of weak definitions.
“FIRE is concerned by definitions of assault that makes it seem like everyone could be guilty,” Kruth said. “This usually results in a transfer of the burden of proof onto the accused person.”
With this guidance, investigations, along with burdens of guilt, will be based on “findings of fact and conclusions,” according to the Q&A.
Not everyone has accepted the new guidance with as much excitement and feelings of relief as others. Among these concerned groups and individuals is Know Your IX.
Know Your IX is “a survivor- and youth-led project of Advocates for Youth that aims to empower students to end sexual and dating violence in their schools,” according to its website.
Know Your IX described DeVos’ rollback of the former guidance as “an outright attack on students’ civil rights.”
The organization further described “her comments [as having] a fundamental misunderstanding of the law and perpetuat[ing] myths that harm survivors.”
Both the 2011 Dear Colleague Letter and the guidance released in September included excerpts about how these investigations were to be handled on campus, mentioning how both parties should be treated throughout the investigation and trial process.
The new guidance outlined that “any process made available to one party in the adjudication procedure should be made equally available to the other party (for example, the right to have an attorney).”
According to the Questions and Answers document on Title IX and Sexual Violence from the DOE Office for Civil Rights in 2014, the former guidance gave the same rights to the accused. The document stated that “if the school permits one party to have lawyers…, it must do so equally for both parties.”
The new guidance addresses instances of injustice that were not adequately addressed in the former guidance, even if the former guidance technically addressed the issues in writing.
So, what is actually going to change in the way investigations are handled now? According to Kruth, it is hard to say.
“I think that, in part, it will come down to how strong the words are in the guidance, how additional guidance given will affect this issue, and how schools handle their legal obligations,” Kruth said.