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Betsy DeVos: Obama-era Title IX sexual assault guidance is revoked

Betsy DeVos: Obama-era Title IX sexual assault guidance is revoked

The era of kangaroo courts on campus may be over.

https://www.youtube.com/watch?v=gBe8R3AlD1U

We previously reported on Education Secretary Betsy DeVos’s major policy speech in which she promised a departure from the Obama-era guidance on how universities and colleges must handle sexual assault cases. That guidance has resulted in a substantial lack of basic due process for accused students in a process fairly described as “kangaroo courts.”

Another aspect of that lack of due process was equally explosive but only now is gaining recognition – the possibly discriminatory impact on black males. This has been the subject of articles in The Atlantic and Reason, as well as a recently released research paper.

The AP reports:

The Trump administration on Friday scrapped Obama-era guidance on investigating campus sexual assault, replacing it with new interim instructions allowing universities to decide which standard of evidence to use when handling complaints.

Education Secretary Betsy DeVos has said the Obama rules were unfairly skewed against the students accused of assault.

“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” DeVos said in a statement.

“Schools must continue to confront these horrific crimes and behaviors head-on. 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,” she said.

DeVos’ temporary guidance allows colleges the freedom to decide which standards of evidence they want to use when investigating complaints of sexual assault. Under Obama’s instructions from 2011 and 2014, colleges were told to use “the preponderance of the evidence” standards, while DeVos lets colleges choose between that standard and “the clear and convincing evidence standard,” which is harder to meet.

The temporary guidance will be in place while the Education Department gathers comments and comes up with new rules.

The temporary guidance is in the form of a question and answer document on the Education Department website (full embed at bottom of this post):

Question 6 is the part that goes to investigatory practices (emphasis added):

Question 6: What constitutes an “equitable” investigation?

Answer:

In every investigation conducted under the school’s grievance procedures, the burden is on the school—not on the parties—to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred and, if so, whether a hostile environment has been created that must be redressed. A person free of actual or reasonably perceived conflicts of interest and biases for or against any party must lead the investigation on behalf of the school. Schools should ensure that institutional interests do not interfere with the impartiality of the investigation.

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.14

Any rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms.15 Restricting the ability of either party to discuss the investigation
(e.g., through “gag orders”) is likely to deprive the parties of the ability to obtain and present evidence or otherwise to defend their interests and therefore is likely inequitable. Training materials or investigative techniques and approaches that apply sex stereotypes or generalizations may violate Title IX and should be avoided so that the investigation proceeds objectively and impartially.16

Once it decides to open an investigation that may lead to disciplinary action against the responding party, a school should provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved, the specific section of the code of conduct allegedly violated, the precise conduct allegedly constituting the potential violation, and the date and location of the alleged incident.17 Each party should receive written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation. The investigation should result in a written report summarizing the relevant exculpatory and inculpatory evidence. The reporting and responding parties and appropriate officials must have timely and equal access to any information that will be used during informal and formal disciplinary meetings and hearings.18

Question 8 goes to adjudicatory requirements (emphasis added):

Question 8: What procedures should a school follow to adjudicate a finding of responsibility for sexual misconduct?

Answer:

The investigator(s), or separate decision-maker(s), with or without a hearing, must make findings of fact and conclusions as to whether the facts support a finding of responsibility for violation of the school’s sexual misconduct policy. If the complaint presented more than a single allegation of misconduct, a decision should be reached separately as to each allegation of misconduct. The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.19

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.

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 or other advisor present and/or participate in an interview or hearing; the right to cross-examine parties and witnesses or to submit questions to be asked of parties and witnesses).21 When resolving allegations of dating violence, domestic violence, sexual assault, or stalking, a postsecondary institution must “[p]rovide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice.”22 In such disciplinary proceedings and any related meetings, the institution may “[n]ot limit the choice of advisor or presence for either the accuser or the accused” but “may establish restrictions regarding the extent to which the advisor may participate in the proceedings.”23

Schools are cautioned to avoid conflicts of interest and biases in the adjudicatory process and to prevent institutional interests from interfering with the impartiality of the adjudication. Decision-making techniques or approaches that apply sex stereotypes or generalizations may violate Title IX and should be avoided so that the adjudication proceeds objectively and impartially

These are only interim steps. Schools still can choose the lower preponderance of the evidence standard, but they are not required to do so as under the Obama guidance. In a footnote DOE makes clear that a school cannot pick a different standard for sexual assault cases:

19 The standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases….When a school applies special procedures in sexual misconduct cases, it suggests a discriminatory purpose and should be avoided.

The interim guidance also seeks to inject a semblance of balance and due process.

This will not halt the current abuses, but it’s a step in the right direction. Convicting or punishing innocent people (usually men) or allowing the process to be abused for other motives, does not advance the real victims of sexual assault.

(added) Ashe Schow, who has covered this issue as closely as anyone, is pessimistic that any changes will change the campus culture that developed under Obama. She writes at The Federalist:

Even with the older guidance, opponents of DeVos (who, honestly, would oppose anything that didn’t strengthen the dangerous mantra of “always believe the accuser”), should know that they have won the culture war over sexual assault on college campuses. In the years since the Obama guidance was posted, activists—along with the media and legislators—have succeeded in expanding the definition of sexual assault.

Now, essentially, if a woman says she was raped, she was raped. Drunken hookups are now rape, even if both parties were equally drunk. Regretted sex is now rape, because, in the words of one activist, students “need some time to reflect” before deciding to make an accusation. There is virtually no way for a student—especially a male student—to have consensual sex on campuses, because if the other person claims it wasn’t consensual, that’s all a school needs because they want to show they take sexual assault seriously.

Even with the new guidance, some college presidents and states have declared they will continue to follow the Obama-era guidelines. In January, a panel of college presidentsagreed with the parts of the Obama-era guidance that have become so controversial. John Jasinski, president of Northwest Missouri State University, said his school would continue to use the Obama-era guidance regardless of what DeVos did. Just last week, the California legislature passed a bill that would codify the Obama-era guidance for the state. Gov. Jerry Brown will likely sign.

The reactions have been predictable:

——————

Q&A on Campus Sexual Misconduct – US Dept Education Sept 2017 by Legal Insurrection on Scribd

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Comments

It’s good to hear good news at least once in a while.

    notamemberofanyorganizedpolicital in reply to Exiliado. | September 22, 2017 at 8:51 pm

    Yes.

    We already knew Title 9 was Sexist in the Extreme (just like the Nazi and their modern counterpart – the Democrat Party).

    Now we know Title 9 is Racist in the Extreme also (just like the….but I repeat myself).

***DeVos’ temporary guidance allows colleges the freedom to decide which standards of evidence they want to use when investigating complaints of sexual assault. Under Obama’s instructions from 2011 and 2014, colleges were told to use “the preponderance of the evidence” standards, while DeVos lets colleges choose between that standard and “the clear and convincing evidence standard,” which is harder to meet.***

Meh.

I was hoping for some change.

    artichoke in reply to Ragspierre. | September 23, 2017 at 11:24 pm

    There’s a subtle point. Schools can only use the same standard of proof for sexual allegations as for all other cases. As noted in a footnote, it was typical for sexual cases to use “preponderance” whereas everything else was “clear and convincing” — because Obama told them to use “preponderance” for sexual cases.

    Now, unless they switch every thing to “preponderance” which probably none of them do, it all has to be “clear and convincing” including the sexual cases.

    It’s the change we were looking for, 90% at least.

“DeVos’ temporary guidance allows colleges the freedom to decide which standards of evidence they want to use when investigating complaints of sexual assault.”

Uh, seriously? Then that really doesn’t resolve the problem of kangaroo courts on campus, now does it? Particularly the rabid radical fringe campii like Berkley or Evergreen State or Oberlin.

This point speaks to a broader question: What justification is there for having government schools investigate and adjudicate violent crimes, like sexual assault?? Where does this authority come from??

If a crime has been commited, CALL THE POLICE, then let them do the job of arresting the perpetrator!

Can someone please explain why these government schools are allowed to circumvent the police and courts in regard to violent crime??

    And it’s amazing that the Left is reacting like the World is Ending due to this tiny, tiny, non change, isn’t it???

      notamemberofanyorganizedpolicital in reply to Tom Servo. | September 22, 2017 at 8:53 pm

      Methinks this is just the foot in the door,
      and the Leftist Communist over-reaction will just throw that door wide open so hard that it’ll come completely off its hinges……

    Collectivists…

    1. don’t trust the police

    2. consider the criminal legal system skewed in favor of white men (particularly)

    3. thirst for power AND

    4. default to “victims” because…Collectivism NEEDS victims.

    Again (answered the same to someone else) they now have to use the same standard for sexual cases as for all other cases. And since nobody uses “preponderance” for other allegations, it all goes back to “clear and convincing”.

    This point speaks to a broader question: What justification is there for having government schools investigate and adjudicate violent crimes, like sexual assault?? Where does this authority come from??

    You can’t be serious. This has nothing to do with the criminal process. The school has to find out what happened so it can decide whether and how to discipline the accused student. Neither the police nor the courts can decide that. and the standard for student discipline should not be the same as that used by the criminal system — proof beyond reasonable doubt. It’s not clear what standard should be used, so it’s reasonable to let the school decide, so long as it applies the same standard to all accusations of misconduct, sexual or otherwise.

    This point speaks to a broader question: What justification is there for having government schools investigate and adjudicate violent crimes, like sexual assault?? Where does this authority come from??

    You can’t be serious. This has nothing to do with the criminal process. The school has to find out what happened so it can decide whether and how to discipline the accused student. Neither the police nor the courts can decide that. and the standard for student discipline should not be the same as that used by the criminal system — proof beyond reasonable doubt. It’s not clear what standard should be used, so it’s reasonable to let the school decide, so long as it applies the same standard to all accusations of misconduct, sexual or otherwise.

I am so tired of the Left trotting out that “1-in-5 will be raped” non-statistic. It has been more thoroughly debunked than the idea that a rabbit travels around the world hiding colored eggs on a certain Saturday night!

    Massinsanity in reply to Walker Evans. | September 22, 2017 at 3:11 pm

    Its NARAL, an organization so foul that it supports the killing of viable human beings in the name of “choice,” you expect them to tell the truth about anything?

    Even they don’t claim 20% will be raped. They claim that many will be “sexually assaulted”, which is a very different thing.

DeVos is about as ‘quiet’ as AG Sessions, and is now about milquetoast.

MAGA does not mean “make America gutless again.”

Trump needs to get himself a conservative in his inner circle. He’s getting (luther) strange.

    Read carefully. This forces everything back to “clear and convincing”, unless the school will judge EVERYTHING by “preponderance”, which nobody will do.

In that I’m only experienced in 12D chess, I cannot fathom this apparent 24D chess being played by the administration. /sarc

Do-nothing Sessions, do-nothing DeVos, Koskinen STILL at IRS, refusal to investigate Hillary, Comey, Clapper, et al, scores and scores of Obama plants all over fed gov…..

I feel justified in suggesting that ‘drain the swamp’ stuff was BS.

    tom swift in reply to Henry Hawkins. | September 23, 2017 at 1:33 am

    So … if you don’t get instant gratification, it can only be because of an evil plot.

    You may have overlooked a few factors.

      Henry Hawkins in reply to tom swift. | September 23, 2017 at 10:30 am

      A wall cannot be built in an instant, but it can be started in an instant. Obama got far more of his agenda started in his first 8 months in office.

      Perhaps what I’ve ‘overlooked’ is that Trump’s inaction on the wall, inability to install and keep good people, and loss of ground on his swamp-draining promises ARE his real agenda.

Umm, really, it’s going to take a lot more than revocation to clean this up. Revocation just says they’re not required to run kanagaroo courts, not that they can’t do so and still receive federal funding.

Perhaps something like a finding that the prior DoE “guidance” itself was a massive violation of students’ rights under Title IX would do it? Considering that this made men uniquely vulnerable to false accusations (followed by an “investigation” by ideologues already convinced that “women don’t lie about that”) followed by a practically inevitable conviction by a tribunal that often lacks even rudimentary due-process protections for the accused.

In response to the prior guidance (and often the schools’ homegrown politics) colleges have recruited and hired a vast Title IX apparat, and it’s not as if this apparat will go gently into that good night (even if the reason for creating it no longer exists). Nor is it likely that most school administrations will show much interest in scaling it back (let alone in reducing its ideological excesses) as they are either craven or mostly agree with the politics that created it.

One can only hope that DoE will realize that stronger medicine will be needed to put an end this campus inquisition. After all, they’re going to be painted as “rape apologists” (or worse) anyway, so why not go all-in to force a rollback?

(And, yes, this task may seem impossible now, but I don’t doubt it once seemed at least as impossible to reign in the excesses of HUAC (the House Un-American Activities Committee). Yet, when (finally!) challenged on firm constitutional grounds, HUAC … folded.

    artichoke in reply to Albigensian. | September 23, 2017 at 11:30 pm

    This guidance does two things:

    (1) effectively forces the proof standard back to “clear and convincing” because it now must be the same standard used in all other disciplinary judgments

    (2) forbids sexual stereotyping. “Women are to be believed” doesn’t fly any more. Explicitly forbidden in clear language repeated several places in the document.

    Milhouse in reply to Albigensian. | September 24, 2017 at 9:38 am

    (And, yes, this task may seem impossible now, but I don’t doubt it once seemed at least as impossible to reign in the excesses of HUAC (the House Un-American Activities Committee). Yet, when (finally!) challenged on firm constitutional grounds, HUAC … folded.

    What abuses? and what challenge?

Realize that the previous guidance was just one way, preponderance of evidence and was forced upon the collages. Now the forcing is removed and any collage that still uses the old standard is still subject to the defendant taking his rights to a real court and NOW since the government standard isn’t preponderance anymore, the last little figleaf of cover they had is gone. Now when wronged defendant takes his case to a real court, the court has more leeway to sanction the collage. Dept of Ed, knows ‘forcing’ the new standard isn’t going to work well as the collages WANT the old preponderance standard, but using it against them here works much better. A few cases down the road, the DoEd can officially change it again. This way the few worst actors will shoot themselves int he foot and go to court and get slapped that way.

    notamemberofanyorganizedpolicital in reply to pwaldoch. | September 22, 2017 at 8:57 pm

    DING DING DING!!!!!!!!!!!

    WE HAVE A WINNER!!!!!!!!!!!!!!!!!

    You win the Intertubes for today!

    tom swift in reply to pwaldoch. | September 23, 2017 at 1:31 am

    ‘Fraid not. The problem wasn’t that Obamian “guidance” was perverting courts, it was that it was perverting schools.

    To correct even the grossest injustice, a falsely accused student had to spend his college years in court instead of getting a formal education. And there’s no strong reason to expect that that will change with this announcement.

No. Not enough. Just like with a dozen other massive overreaches by Obama’s administration, ABSOLUTELY NOTHING prevents the next Democrat ideologue from re-issuing this the second they are in office.

Codify it into law or you haven’t accomplished anything.

I have to concur with the overall tenor … This is an improvement, but it’s still pretty weak stuff. Hardly the sort of thing which would justify anybody’s salary.

As I mentioned over at Instapundit, and has been since partially confirmed by Ashe Schowe, there is a grievance infrastructure that supports Obama’s Title IX interpretation. They may have even prompted his administration to issue the “dear colleague” letter to that end.

They are financially invested in this scheme, and many are ideologically invested as well. Thousands of people’s jobs depend on this travesty continuing, so any changes to the policy will be resisted.

Like Jim Crowe, this will not go away on its own. It must be hunted down and killed with fire. Just wait and see.

    artichoke in reply to Matt_SE. | September 23, 2017 at 11:41 pm

    We’ll see, but I am hopeful. I can see that if business as usual continues, this guidance provides opportunities for aggrieved boys to sue the schools for reinstatement or big bucks. The schools are forbidden to favor girls over boys (or vice versa) in very clear language.

    One of those SJW bureaucrats is likely to slip if they put the boy thru their process and give him grounds for a nice juicy lawsuit.

Several people missed this, so I am summarizing what this guidance does. You aren’t appreciating how good it is. I really don’t see how the garbage can continue any longer.

And students previously thrown out of school under previous flawed guidance probably have new weapons in court now — would appreciate a competent legal view on this point.

This guidance does two things:

(1) effectively forces the proof standard back to “clear and convincing” because it now must be the same standard used in all other disciplinary judgments

(2) forbids sexual stereotyping. “Women are to be believed” doesn’t fly any more. Explicitly forbidden in clear language repeated several places in the document. The bureaucracy cannot be pro-woman any more. It has to be sex-neutral.

    artichoke in reply to artichoke. | September 23, 2017 at 11:38 pm

    And another thing it does, which may be different from the old guidance

    (3) allows the students to reach an agreement between themselves and the school is then permitted to drop the case.

    Schools used to continue these cases and expel the boy even when the girl was telling them not to, so I suspect the guidance said before that they were not supposed to drop the case if they found factual basis (by preponderance standard) for the allegations.

Not an issue for a campus anyways….this is still not due process under the law as college campuses are not equipped or appropriate jurisdictions for investigation, trial, verdict, and sentencing.

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