What a Potential Rollback of Obama-era Sexual Assault Policy Could Mean for Whitman

Christy Carley, News Writer

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UPDATE: As of Friday, September 22, DeVos officially announced the roll-back of the 2011 Dear Colleague Letter along with accompanying FAQs released in 2014. The Department of Education released interim guidance which allows schools to use a higher standard of proof when evaluating cases of sexual assault, and gives those accused of assault greater access to evidence. The document also states that the standard of evidence used when evaluating cases of sexual assault should match that of other policy violations, such as academic dishonesty, and allows for a process of mediation if both parties agree.

In response to the announcement, the Association of Title IX Administrators released a guide for schools choosing between evidence standards, but declared its stance in favor of preponderance of the evidence. In an email to the campus community, President Murray affirmed Whitman’s obligation to creating a safe environment adding, “the full impact of this move is still emerging and we are working to understand it better.”

 

In her recent speech at George Mason University, Education Secretary Betsy DeVos criticized the handling of sexual assault investigations on college campuses and vowed to begin the process of “developing a better way” for schools to approach such cases.

While she refrained from outlining a specific plan, DeVos promised to “launch a transparent notice-and-comment process to incorporate the insights of all parties,” and stated in a later interview that she intended to roll back Obama-era guidelines related to Title IX that were introduced in a 2011 “Dear Colleague” letter from the Office for Civil Rights (OCR).

Sent to all colleges receiving federal funding, the letter sought to explain the requirements of Title IX as related to sexual violence and set out a specific procedure for schools to follow in order to ensure that those requirements are being met. Failure to meet Title IX requirements could result in loss of federal funding. Among the requirements was the appointment of an official Title IX Administrator at each college and university, the publication of a grievance policy, and perhaps most controversial, the use of the preponderance of the evidence standard in evaluating cases related to Title IX, including those of sexual assault.

Harshly critiqued by DeVos, the preponderance of the evidence standard requires that the findings in a case prove that the incident was “more likely than not” to have occurred in order for the case to be decided in favor of the claimant. It is often employed in civil rights cases, a category under which Title IX falls.

A large portion of DeVos’s speech was devoted to describing injustices faced by both survivors of sexual assault, and those falsely accused of committing an act of sexual assault, who she referred to as “victims of a lack of due process.” The time she devoted to the latter group sparked criticism from survivors and advocates who emphasized the high number of sexual assault cases that go unreported, in comparison to those that are falsely reported.

Bryn Louise, co-president of Feminists Advocating for Change and Empowerment (FACE), emphasized the importance of supporting survivors, even without the highest standard of evidence.

“The converse is, you let a bunch of people stay on campus that inhibit other people from operating healthily and pursuing their studies and living a good life,” Louise said. “To ask the tiny fraction of people with false accusations to leave, I think, is worth it to protect the vast majority of people who make these reports in earnest.”

According to Associate Dean of Students Juli Dunn, who serves as Whitman’s Title IX Administrator, the preponderance of the evidence standard is designed to give students equal standing at the beginning of a case.

“If you use any other standard,” she said, “somebody is going to have to overcome that.” Dunn added that cases are generally decided with much greater certainty than just 51 percent. According to Dunn, around 12 people who may have interacted with either party before or after the incident will be interviewed in a typical investigation. The college also takes online communication or text messages into consideration.

Beyond the issue of preponderance of the evidence, DeVos joined many critics in asserting that colleges and universities play too large of a role in investigating cases of assault.

Currently, survivors have the choice to report either to the school, where the case will be handled as a policy violation, or to the police department, though the latter of which often results in a dead end.

According to Hailey Powers, the Sexual Assault Victims Advocate at the Walla Walla YWCA, when cases of sexual assault are brought to the police, they often aren’t picked up by prosecutors.

“A lot of times prosecutors aren’t going to pick something up unless they know they can win it,” Powers said. “And in these cases there’s often just not enough evidence to convince a prosecutor that it’s worth their time to take it on.”

The future of campus sexual assault investigations remains uncertain. Even with a rollback of Obama’s 2011 letter, Dunn says she doesn’t think much will change with regards to how cases of sexual assault are handled at Whitman.

She emphasized that the requirements set forth in 2011 were meant to provide colleges with a specific procedure so that they could adhere to Title IX requirements that were established by two Supreme Court cases in the 1990s.

While the outline of how colleges and universities should handle cases of sexual assault may go away, their responsibility to uphold case law related to Title IX remains the same.

Given the nature of Title IX as a civil rights based issue, Whitman’s use of the preponderance of the evidence standard likely won’t change. Inside Higher Ed reports that around 70 percent of colleges and universities had already employed the standard prior to the 2011 letter.

Regardless of what happens at the federal level, Powers is confident that her role and relationship with the community will remain the same.

“I’m still going to be there for people who need resources and support, and I will help them navigate whatever systems they are a part of,” she said. “Survivors should know that they’re still going to be taken care of.”

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