Betsy DeVos, one of the most controversial Trump administration cabinet members, just made a radical change to one of the most contentiously debated Department of Education policies.
On Friday, DeVos announced that the department had revoked Obama-era guidelines that advocates argue were critical to protecting victims of college sexual assault and investigating allegations of violence.
“Schools must continue to confront these horrific crimes and behaviors head-on,” DeVos said in a statement. “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.”
While DeVos framed the issue as a matter of fairness, advocates were alarmed by her focus on accused perpetrators.
The previous guidance, issued in 2011 and 2014, instructed schools to use what’s known as a “preponderance of the evidence” standard instead of a “clear and convincing” standard. The former means that it’s more likely than not that sexual harassment or violence occurred while the latter requires campus investigators to determine the accusations are highly probable or reasonably certain.
Campus sex assault allegations are investigated by school officials as a violation of federal sex discrimination law — not criminal statutes. The Obama administration argued the preponderance of the evidence standard reflected Supreme Court practices when evaluating civil litigation of sex discrimination cases. The interim guidance now allows schools to use either standard of evidence.
DeVos, who was previously a business executive and Republican political operative, vehemently disagreed with that approach. “Washington dictated that schools must use the lowest standard of proof … it’s no wonder so many call these proceedings ‘kangaroo courts,'” she said earlier this month. “Kangaroo courts” has become a conservative talking point used to describe campus investigations of sexual assault.
Advocates of the Obama-era guidance denounced DeVos’ decision as irresponsible.
“With sexual assaults routinely going unreported, uninvestigated and unpunished, the scales are already heavily tipped in the favor of rapists,” Nita Chaudhary, co-founder of the women’s advocacy group UltraViolet, said in a statement. “The idea that we need to focus more on the rights of the accused was almost laughable before this decision, now it’s just terrifying and dangerous.”
Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in her own statement that the new guidance will have a “devastating impact” on students and school because it’ll discourage students from reporting assaults and create uncertainty for schools.
“This misguided directive is a huge step back to a time when sexual assault was a secret that was swept under the rug,” she said.
Other advocacy organizations opposed to the decision include the American Association of University Women, Human Rights Campaign, and Planned Parenthood. Vice President Joe Biden spoke out against the expected policy changes earlier this week in a PSA for the It’s On Us campaign.
“We cannot let that stand. So don’t give up,” he said. “Speak out. Demand that your school continue to make progress.”
The Department of Education will solicit comment from the public as it develops its new official policy on how colleges should handle campus sexual assault.
Based on the preliminary response from advocates, the department may want to prepare for an avalanche of angry feedback.