Democratic lawmakers are working to stop Secretary Betsy DeVos from rescinding Obama guidance on how colleges and universities should treat sexual assaults on campus.
Yesterday, Democratic members of Congress introduced legislation to codify the 2011 guidance to schools known as the “Dear Colleague” letter and 2014 Question and Answers on Title IX document as well as 2001 guidance on sexual harassment issued by President Bill Clinton (then re-issued by President George W. Bush). While it is supported by a host of progressive women’s group, it’s unlikely to advance in Congress without Republican support.
The bill would reportedly direct schools to permanently use a “preponderance of evidence” when determining whether an assault occurred, require that schools stick to a 60-day time frame to investigate allegations, and allow complainants to maintain their confidentiality.
This is all in response to Secretary DeVos, who withdrew the 2011 guidance and Q&A last month and intends to write new guidance.
The sponsor of the bill Rep. Jackie Speier makes her political motivation clear:
"[The bill] is codifying what has been an existing law under Republican and Democratic administrations, and it has been changed under the Trump administration," Speier told Refinery29 shortly after announcing the legislation. "We have a president who thinks that it's okay to sexually assault a woman because he's famous, so…"
Speier conveniently overlooks the damage that the 2011 guidance caused.
The Obama administration expanded the 1972 Title IX federal law prohibiting gender-based discrimination to push colleges and universities to be aggressive in combatting sexual assault on campus. The guidance lowered the standard of proof from “clear and convincing” to just a “preponderance of evidence” and eroded basic due process rights of accused students. Investigations were weighed in favor of guilty findings rather than finding truth.
As we’ve reported, cases been overturned and the lives of students turned up-side-down as their reputation, education and job opportunities, and even their wellbeing have been harmed. Authorities in the legal community and higher education have expressed concern about these investigations.
It was the right move for Secretary DeVos to rescind the Dear Colleague letter and start fresh to create procedures that strike an important balance. When a young woman or man comes forward to report an assault they should know it will be investigated, but the accused also have rights that must be protected in the process.
Codifying the 2011 guidance only moves us backwards instead of forward in a productive manner.