The Office for Civil Rights in the United States Department of Education has formally rescinded longstanding guidance requiring federally funded schools to address allegations of sexual misconduct, including sexual assault.
The administration has rescinded two documents: A 2011 guidance known as the “Dear Colleague” letter, and a 2014 document containing questions and answers on Title IX.
“The actions taken by the Office for Civil Rights today are premised on incorrect assumptions,” says Women’s Law Project Managing Attorney Terry L. Fromson. “It will return us to the times when campus sexual misconduct procedures were stacked against victims and forced them to leave their school to safely pursue their education.”
The rescission letter erroneously claims the 2011 Dear Colleague letter “impose[d] new mandates” related to resolving allegations of student-on-student sexual misconduct. In fact, the 2011 merely articulated a long-standing interpretation of Title IX, a landmark education equity law passed in 1972.
Much has been made about the evidentiary standard, or burden of proof, used in administrative hearings addressing allegations of sexual misconduct. The rescission letter misleadingly suggests that the Obama-era guidances lowered the standard of proof. In fact, most schools already used the preponderance standard, to the extent that they published any procedures at all (failure to articulate procedures is itself a violation of Title IX).
The preponderance standard is fully consistent with the requirements and spirit of civil rights laws, as well as with OCR’s past enforcement of Title IX, going all the way back to the 1975 regulations and subsequent Title IX guidance documents. Other educational civil rights statutes like Title VI of the Civil Rights Act of 1964, which prohibits race discrimination by educational institutions and is also enforced by OCR, and Title VII of the Civil Rights Act of 1964, which addresses employment discrimination including sexual harassment, rely on the preponderance standard.
Relying on a different standard of proof to adjudicate allegations of sexual misconduct than what is used to address other forms of discrimination would, in fact, be a form of discrimination itself. It is worth noting the preponderance standard is what is used when male students accused of sexual assault sue their schools for allegedly discriminating against them.
The rescission document was signed by Acting Assistant Secretary for Civil Rights Candice Jackson. Recently, Jackson smeared rape survivors by publicly stating the false, easily disproven claim that “90%” of sexual assault allegations on campuses “fall into the category of ‘we were both drunk.'”
These guidance documents have been replaced by an interim guidance that borrows liberally from criminal justice procedure, a system that is heavily weighted to favor accused defendants. By mimicking the criminal justice system, this attack on Title IX protections tips the scales against survivors and will make it even harder for them to come forward.
The rescission letter states OCR will pursue a new approach that “responds to the concerns of stakeholders,” and cites “accused students” before victims of sexual abuse–a priority list echoed in the action taken today.
The Women’s Law Project is a public interest law center in Pennsylvania devoted to advancing the rights of women and girls.
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