Betsy DeVos’ Department of Education announced this week that they would be withdrawing the infamous 2011 “Dear Colleague” letter from the Obama era. The letter drastically changed the procedure and tonality of campus sexual harassment investigations and had a chilling effect on internal sexual harassment investigations on college campuses. While extra provisions were made for the complainants under the rules of Title IX (preventing sexual discrimination against female students) nearly all protections for the accused were stripped away, leading to hundreds of disturbing cases where ultimately the accused was found innocent too late to save their college career. Reason.com many of the worst cases in this article, and it will blow your mind.
DeVos’ DOE vowed to withdraw the letter and so they did. Now they’ve released “interim” guidelines and (an accompanying Q&A memo) for colleges to follow in their sexual harassment investigations. Naturally, many feminist groups and left-wing media types are hysterically announcing this as end of protections for college women forever.
To every voter who insisted that Trump's "private behavior" wouldn't affect his public decisions… https://t.co/5EryTYEaQg
— Sally Kohn (@sallykohn) September 22, 2017
— HumanRightsCampaign (@HRC) September 22, 2017
— Mother Jones (@MotherJones) September 22, 2017
Now they’ll just be able to be raped at will! If only we had laws against such a thing.
Of course, it’s not quite that dire. In fact, it isn’t even close to that bleak but one wouldn’t expect left-wing Chicken Littles to actually read and compare the rules. Both documents are dry and heavy with bureaucratic language, as these things tend to be. They are easily accessible and I encourage everyone to read and compare for themselves before descending into insanity, but for those who don’t have the time or intellectual curiosity, here is a quick rundown of the nut and bolts of the (2017) “interim” provisions and how they stack up against the (2011) “Dear Colleague” requirements.
- 2011-The school has a responsibility to respond quickly and reasonably to any accusations, and to conduct a thorough investigation.
- 2017- This one remains pretty much the same.
- 2011- Upon receiving a complaint, the school must take immediate action to eliminate the harassment and must provide counseling services and protections from academic consequences (such as missing classes/tests while dealing with an investigation) to the complainant.
- 2017– The school must provide said services to both parties until an investigation is concluded. (Q&A on Sexual Misconduct on Campus, page 2) Interim measures are individualized services offered as appropriate to either or both the reporting and responding parties involved in an alleged incident of sexual misconduct, prior to an investigation or while an investigation is pending…In fairly assessing the need for a party to receive interim measures, a school may not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make such measures available only to one party.
- 2011-The school’s investigation must be prompt and impartial
- 2017-The school’s investigation must be prompt and impartial. DeVos’ guidelines simply emphasize impartiality and a “case-by-case” approach. (Q&A on Sexual Misconduct on Campus, page 4) An equitable investigation of a Title IX complaint requires a trained investigator to analyze and document the available evidence to support reliable decisions, objectively evaluate the credibility of parties and witnesses, synthesize all available evidence—including both inculpatory and exculpatory evidence—and take into account the unique and complex circumstances of each case.
- 2011- Any complaints should be officially reported and adjudicated as official Title IX violations (which triggers government intervention), avoiding informal resolutions between a given school and involved parties. Schools should avoid any form of mediation (even on a voluntary basis) involving the accuser.
- 2017 – Any complaints may be officially reported and adjudicated as official Title IX violations, however individual institutions are free to pursue informal resolutions if all parties agree.
- 2011- The school governing body may without some information about complaints from the accused, including any notice of intent to discipline.
- 2017 – The school governing body must make all evidence equally available to both parties. (Q&A on Sexual Misconduct on Campus, page 5) The decision-maker(s) must offer each party the same meaningful access to any information that will be used during informal and formal disciplinary meetings and hearings, including the investigation report.20 The parties should have the opportunity to respond to the report in writing in advance of the decision of responsibility and/or at a live hearing to decide responsibility.
- 2011- Schools must use the “preponderance of evidence” standard (i.e., it is more likely than not that sexual harassment or violence occurred, Dear Colleagues Letter, page 11)
- 2017 – Schools may use the “preponderance of evidence” standard or the “clear and convincing evidence” standard, otherwise known as “innocent until proven guilty.”
All other provisions of the “Dear Colleague” letter remain in tact.
Despite the salacious headlines that are based more in “Trump Derangement Syndrome” than in reality, the new interim guidelines are not designed to weaken victims, but to strengthen the process. In seeking to further protect the rights of victims, Obama’s DOE created new victims – the accused who were being assumed as guilty until proven innocent. As repeatedly detailed by reporters who actually care about the truth, these guidelines led to some pretty horrifically unjust outcomes for young men who were ultimately found innocent of the charges against them. In some cases the charges themselves amounted to little more than a clerical era, and yet innocent people were forced to abandon their education at great personal cost.
No one should be discriminated based on their gender. That is the heart of Title IX. Obama-era regulations created a new victim class, rather than eliminating one.
No, rape isn’t legal and dudes can’t just go around grabbing boobs whenever they want (sorry for the trigger, Brooke Baldwin).
In this country, an accused has all the same rights as an accuser. It is the very foundation of our justice system and a college campus is the last place we should ignore such a reality.