Staff Reporter (2017-2018)
Educational institutions are challenged with the difficult task of balancing the rights of victims with the rights of the accused when responding to allegations of sexual assault on campus. News stories of sexual assault victims who are too afraid to come forward for fear of facing their assailant are just as common as stories of young people who are falsely accused of rape and whose promising future is put in jeopardy. The current presidential administration faced media attention when the Secretary of Education announced that certain policies from the previous administration regarding on-campus sexual assault investigations had been reversed.
These policies stem from Title IX, a federal law designed to protect victims from gender discrimination at private and public educational institutions that receive federal financial assistance.1 An investigation by the Center for Public Integrity found that the educational system was failing to protect victims from sexual assault.2 As a result, the Assistant Secretary for Civil Rights issued a Department of Education Dear Colleague Letter (DCL) interpreting Title IX.3 A Dear Colleague Letter provides information, guidance, and clarification regarding implementation of Department of Education policies.4
This 2011 DCL described in detail the procedures that educational institutions should use to adjudicate sexual assault allegations.5 These procedures were designed to protect the rights of victims by reducing or eliminating additional emotional stress and required the appointment of Title IX Coordinators to respond to complaints within a standard 60-day time period. To accomplish this goal, the 2011 DCL lowered the burden of proof required for a guilty finding, discouraged cross-examination of accusers that would necessitate interaction between victims and assailants, and allowed victims to appeal not-guilty findings.
Critics of the 2011 DCL argued that the guidelines violated the Due Process rights of the accused. First, the accused could be denied the right to confront his or her accuser. Second, the standard of proof (the weight of evidence needed to find in a party’s favor) was lowered to “a preponderance of evidence,” generally defined as only 51% of the evidence. This lowered threshold would be even easier to meet when the accused was not allowed to cross-examine his or her accuser. Third, appeals of “not guilty” findings constituted double jeopardy.
In response to these concerns, the Department of Education issued a new DCL in 2017 to rescind the prior DCL and offer greater flexibility to institutions to respond to Title IX complaints.6 The goal remains a fair, impartial process for responding to complaints. However, investigations are no longer required to meet a standard 60-day deadline. Cross-examination or questioning of victims is no longer discouraged, and the “preponderance of the evidence” standard is no longer required. Instead, institutions are urged to use the same standards used for all other types of misconduct. Lastly, only “guilty” findings are subject to an appeal. These guidelines are meant to further support educational institutions in responding to allegations while preserving the rights of both the victims and the accused.
1 Department of Justice. Overview of Title IX of the Education Amendments of 1972, 20 U.S.C. A§ET. SEQ. (January 13, 2018).
2 Gordon Witkin et al., Sexual Assault On Campus. A Frustrating Search for Justice, The Center for Public Integrity (2010).
3 Ali, R. (2011, April 4). Dear colleague letter. Washington, DC: U.S. Department of Education, Office for Civil Rights.
4 U.S. Department of Education. OSEP Policy Letters (Including OSEP Memos, Dear Colleague Letters, and FAQs) (January 13, 2018). (Also footnote 5)
6 Jackson, C. (2017, September 22). Dear colleague letter. Washington, DC: U.S. Department of Education, Office for Civil Rights.