Betsy DeVos gets an “A” for rolling back Obama’s Dear Colleague letter [video]

by Jenny North on September 23, 2017

Well, maybe a B+. More improvements are needed, but it’s a good start.

The Department of Education has withdrawn the 2011 Dear Colleague letter issued to colleges that outlined new standards for adjudicating sexual assault. Among the most troublesome of the rules promulgated was the lowering of the burden of proof standard from a “clear and convincing” standard to one only requiring a “preponderance of the evidence” standard. Preponderance of the evidence standard is frequently described as a standard requiring a level of proof that equated with 51% – more likely than not. By comparison the standard for a criminal conviction is beyond a reasonable doubt. The interim guidance is here, and the 2017 Dear Colleague letter is here.

Other problems with the 2011 letter were: accusers had the right to appeal decisions; parties were discouraged from cross-examining each other, for fear of creating a hostile environment; schools were forbidden from relying on law enforcement to investigate; and that due process concerns should not unnecessarily delay the proceedings.

The 2011 Dear Colleague letter, like most of the things Obama did, was put into place without public consideration and comment, and was a surprise to the schools who were required to comply. DeVos’ DOE has issued interim guidance, returning to a clear and convincing standard, and has implemented a public comment period in preparation for the DOE settling on new rules. In other words, the DOE is following the rules for implementing new rules, something Obama had little time for.

Campus activists are already enraged over this change, even though the changes are simply more in line with fairness, and they are not final. They have accused DeVos and her deputy, Candice Jackson of wanting “to protect those who ‘grab’ by the genitals and brag about it — and make college campuses a safer place for them.” That criticism is completely unfair. DeVos says:

“One rape is one too many, one assault is one too many, one aggressive act of harassment is one too many, one person denied due process is one too many,” DeVos said during a speech earlier this month at George Mason University’s campus in Arlington, Virginia.

Former Vice President Joe Biden has resurfaced as well, to say,

“You may have heard the progress we made, the additional protections we put in Title IX, which is now the law, that protects students from sexual discrimination — that includes sexual violence,” Biden says in the video. “Now the Department of Education under new leadership is working to roll back the protections under Title IX that we worked so hard to put in place.”

This lecture from Creepy Uncle Joe is not persuasive. He never learned how to keep his paws to himself, so anything he says on this matter is complete BS. And no, Bernie and Kristen, you aren’t much better persuaders either:

This is an excellent step by DeVos to realign a system that had undone the protections of due process.

“The campus justice system was and is broken,” Foundation for Individual Rights in Education (FIRE) Executive Director Robert Shibley said in a statement. “Fair outcomes are impossible without fair procedures. When the government sprang its 2011 letter on colleges and students without warning, it made it impossible for campuses to serve the needs of victims while also respecting the rights of the accused. With the end of this destructive policy, we finally have the opportunity to get it right.”

While it seems reasonable for a school’s disciplinary department to handle minor incidents of sexual harassment such as unwanted comments or annoying behavior, it should still be the purview of regular law enforcement to investigate and prosecute anything that satisfies a criminal offense. Schools should not be involved in handling sexual assault, rape, or criminal stalking cases. Those belong in the legal system. If a school adjudicates a rape case, the school cannot lock up the offender, only expel him. How does that help society? Let the justice system do its job and then the school can act accordingly based on that result.

Those fighting for protections for sexual assault victims argue that the 2011 letter helped more victims come forward. They say this is needed in order to combat the problem of sexual misconduct on campus. But the result seemed to be more that the definition of sexual misconduct was broadened, to such a degree that consent may be withdrawn months after the fact. This leaves the accused in a situation designed to be unfair.

There has been an expansion of the definition of sexual assault that not every American agrees with,” Grigoriadis said. “At the same time, there is confusion around consent. What is consent? How do you get it? What did she have to say in the moment?”

The FBI updated its definition of rape in 2013 from “carnal knowledge of a female forcibly and against her will” to “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” Definitions around consent are changing, too. States such as New York and California have passed affirmative consent laws — also known as “yes means yes” laws — and many schools have implemented their own affirmative consent policies.

 With a “yes means yes” standard, silence doesn’t count as consent. Neither does a lack of resistance. Consent — which can be given through words or actions — must be voluntary and mutual and can be withdrawn at any time.

Good outcomes cannot come from unfair proceedings. A system that is fair for the accused does not lessen the protection for accusers and we need to stop making that equivalency.

The DOE will rely on the rules as established in 2001 and 2006. It further intends to make new rules if necessary, but to do so through the proper rule making process that includes the ability of the public to comment.

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{ 2 comments… read them below or add one }

David R Byler September 23, 2017 at 5:11 pm

“campus justice” is by it’s very nature dependent in one way or another upon “in loco parentis,” a principle which was wisely discarded sometime back.

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Jenny North September 24, 2017 at 6:58 am

Agree!

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