Obama-era Policies Set for Overhaul

Education Secretary Betsy Devos is poised to make sweeping reforms to federal policy regarding sexual assault on college campuses. In a recent speech at George Mason University, Devos vowed that the Department of Education will be overhauling how sexual assault claims on campuses are handled.

In her speech, Devos signaled a strong course change: "Washington has burdened schools with increasingly elaborate and confusing guidelines that even lawyers find difficult to understand and navigate."

Devos then offered up several examples of where current policy has failed students. She cited real cases where schools have either failed to provide due process protections, or have bungled evidentiary standards.

The "Dear Colleague" Letter

The policies that Devos is critiquing stem from a 2011 letter issued to U.S. colleges and universities by the Department of Education's lesser-known Office of Civil Rights (OCR). It argues that sexual assault is a form a harassment prohibited under Title IX anti-discrimination law.

By sending this letter, the federal government placed the burden of litigating sexual assault accusations on the schools themselves. It effectively instructs schools to use the lowest legal burden of proof, a preponderance of evidence, in the proceedings. 

Colleges and universities are rarely equipped to fairly handle these types of investigations. But this is exactly what the Department of Education demanded that colleges do themselves. Schools have since been forced to establish dubious regulatory frameworks to handle cases. A group of 28 Harvard University Law professors had this to say about their school’s sexual assault policy in 2014:

“Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

Following her speech, Devos was asked by CBS News if she will be rescinding Obama-era policies, to which she responded: "Well, that’s the intention, and we’ve begun the process to do so."

This apparent course change is being celebrated by many. Critics see the 2011 letter as having severely weakened due process protections of the accused. Robert Shibley, executive director of the Foundation for Individual Rights in Education, welcomed the policy changes. “So many of the campus hearings are kangaroo courts with low due process, and you can’t really have any confidence in the outcomes,” he said.