U.S. Secretary of Education Betsy DeVos is in the process of reversing Obama-era policies on how colleges are required to deal with sexual assault. The new guidelines seem to have little effect on COC’s existing policies.
The Department of Education has withdrawn the Dear Colleague Letter on Sexual Violence from April 4, 2011 as well as Answers on Title IX Sexual Violence from April 29, 2014. The Department of Education has issued an interim Q&A on Campus Sexual Misconduct for schools on how to address, investigate, and resolve allegations of sexual misconduct.
The most significant changes include the length of time for the investigative time frame, the standard of proof used to determine guilt, and whether or not informal mediations and resolutions will be allowed.
“College of the Canyons always had preponderance of the evidence, and we still have preponderance of the evidence,” says Dr. Michael Wilding, Vice President of Student Services. “We’ve always allowed attorneys to be present at our hearings. We’ve allowed for cross examination and review of evidence.”
Under Obama-era policies, schools had a 60-day window to complete an investigation. The Q&A on Campus Sexual Misconduct states that “there is no fixed time frame under which a school must complete a Title IX investigation. The Office of Civil Rights will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.”
Furthermore, the prior guidelines mandated that the standard of proof should be preponderance of the evidence (meaning more likely than not) whereas the new guidelines state that schools can choose if they want to keep using preponderance of the evidence or increase the standard to clear and convincing evidence, as long as they use the same standard across all student misconduct cases.
“The guidance said we can change it if we want. Our system, we feel, works fine and we have no intent to change it,” said Wilding.
Lastly, Obama-era guidelines stated that informal mediations in sexual misconduct cases was inappropriate. The new guidelines state informal resolutions are allowed “if all parties voluntarily agree to participate in informal resolution that does not involve a full investigation and adjudication after receiving a full disclosure of the allegations and their options for formal resolution” as well as if the school “determines that the particular Title IX complaint is appropriate for such a process.”
In a statement, the Department of Education says that guidance under the withdrawn documents “has not succeeded in providing clarity for educational institutions or in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires.”
The Department of Education has yet to formalize any new rules or guidelines.
“When this thing gets formalized we’ll take a look at it and so far I don’t see that we need to change a lot. A few words here and there on our length of time to do our investigations. We already have preponderance of the evidence. I don’t think we’ll change it, but if we’re required to we will. And we already have the ability to come to a mediated agreement,” said Wilding. “So far, our stuff is compliant with the new guidelines.”