Education Secretary Betsy DeVos announced in September she would scrap controversial guidance issued by her predecessor to colleges and universities over how to handle sexual assault claims. But few college administrators have changed their approach, frustrating student advocates to the point of filing lawsuits.
The Obama-era Education Department told universities to use a “preponderance of the evidence” standard, a relatively low threshold for determining guilt. If they didn’t, they would lose federal funding. DeVos urged schools instead to use a “clear and convincing evidence” standard, which comes closer to the U.S. legal system’s foundation of “innocent until proven guilty.” But she’s not forcing them to make any changes until the department goes through a formal rule-making process, something her predecessor deemed unnecessary.
Faced with likely backlash from women’s groups and victims’ advocates, most schools are keeping their Obama-era policies, a decision that continues to trample the rights of the accused, critics say. At least eight schools face lawsuits filed by attorney Andrew Miltenberg, who represents accused students. “The schools that are not adjusting are the ones that are still coming out with ridiculous results,” he told Politico.
Criticism of the Obama-era sexual assault guidance cut across the political and ideological spectrum. On Monday, California Gov. Jerry Brown, a Democrat, vetoed a bill that would have codified the former federal rules into state law. “Thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault—well-intentioned as they are—have also unintentionally resulted in some colleges’ failure to uphold due process for accused students,” Brown wrote in a statement announcing his veto. “Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.” —L.J.