On Friday, The Dear Colleague Letter, which guided the enforcement of Title IX policies at universities across the country, came to an end — changing the guidelines for how schools can adjudicate sexual assault cases.
The announcement left students, activists and administrators unsure of the future of Title IX cases in academia.
U.S. Secretary of Education Betsy DeVos issued interim guidance Friday on campus sexual assault, scrapping the Obama administration's Dear Colleague Letter and allowing colleges to use a higher standard of evidence in investigations.
While some believed the Dear Colleague Letter eliminated due process for the accused, advocates for survivors of sexual assault have already voiced concerns that the changes will silence survivors.
The new guidelines, which will be in place while the Department of Education creates a formal policy, detail how universities, colleges and K-12 schools should deal with Title IX of the Education Amendments of 1972.
UNC’s current sexual assault policy follows the 2011 Dear Colleague Letter. The University’s standard for sexual assault cases requires a “preponderance of evidence,” a lower standard than other student misconduct cases, like cheating and hazing, which require “clear and convincing evidence."
Raising the standard of evidence
When C.D. Mock’s son was found guilty of sexual misconduct through the University of Tennessee-Chattanooga’s Title IX investigation process and expelled in 2014, he fought back against what he believed to be an unfair ruling.
Other students like his son aren't always able to fight, said Mock, who now is the spokesperson for the National Coalition for Men Carolinas.
“They walk away from their school, they walk away from everything, and they hope they can transfer to another school,” he said.
Mock, a former UNC wrestling coach, believes he was fired for speaking out against his son’s experience with Title IX. He said most of them can’t speak out because it’s on their record.
A Davidson County Chancery Court judge eventually ruled there was not enough evidence to prove that the sex was non-consensual.
DeVos' proposed changes are taking aim at the system she believes failed students like Mock's son.
The new guidelines, which are outlined in the form of a Q&A, instruct schools to use the same standard for sexual assault and other student misconduct cases. This appears to clash with UNC’s current practice of using a different standard for investigations in the Title IX office than the standard used for honor code violations.
In a statement, the University said officials are reviewing the guidelines and will follow the formal rule-making process to determine the impact on the University.
A preponderance of evidence requires more than 50 percent of the evidence to point to the accused’s alleged actions.
The new guidance allows schools to use the preponderance of evidence standard, but it also gives schools the choice to decide misconduct cases based on clear and convincing evidence, which is defined as “that proof which results in reasonable certainty of the truth,” though it’s less strict than “beyond a reasonable doubt.”
“If you have a preponderance of evidence situation, you’re very likely to convict the innocent,” said Charlotte Hays, director of cultural programs at the Independent Women’s Forum. “You need the same kind of standard that we’ve always had in Western jurisprudence, that you’re innocent until proven guilty."
Reporting assault under the current standard of evidence is already difficult, said UNC junior Mallory Hoffman, who lost in her Title IX case at UNC against her alleged rapist though she thought she had ample evidence.
She said that, after being assaulted in her apartment by a man she met on Tinder, she brought her case to UNC’s Title IX office. She kept text messages, submitted her rape kit and had various witnesses who had been with her after the experience — roommates, friends, mentors — who all corroborated her story.
The decision was postponed twice. The day the verdict finally came out was Valentine’s Day 2017, and she was at work when she opened the email from the Title IX office.
“I’m just bawling at that point because I’m like, 'I went through so much just to find out that I lost,'” she said.
Kerry Sutton, a Chapel Hill attorney who defended UNC football player Allen Artis after he was charged with a misdemeanor assault on a female and sexual battery last year, said that Title IX officials, who are typically not lawyers, often don’t know what is appropriate to determine if there was a preponderance of evidence in a case.
“To one person on a panel, that might mean this person had five pieces of evidence and this person had six, so they win,” she said.
Supporters of the Obama guidance say because Title IX is a civil rights law, the preponderance of evidence standard is appropriate.
“By changing that, (DeVos is) creating some sort of special class, not only with Title IX but specifically with sexual violence within Title IX,” said Annie Clark, executive director of End Rape on Campus, and a former UNC student involved in a federal complaint against the school for its alleged mishandling of sexual assault.
“Basically what she’s doing is she’s permitting discrimination,” she said.
‘Having absolutely no time frame is irresponsible’
Another change in DeVos’ guidance is the process of appealing a decision. The Dear Colleague Letter recommends that an appeals process be available to both parties, but DeVos’ new guidelines allow schools to only let the accused appeal.
Clark said this tips the scale in favor of alleged perpetrators.
“Generally, this gives schools permission to treat rapists better than survivors, and I think it sends a very clear signal to students all around the country that certain students have rights that should be protected more than others,” she said.
The guidance also eliminates the 60-day time time frame outlined in the Dear Colleague Letter for the resolution of a Title IX case. The Obama guidance allowed for exceptions, but generally advised that investigations take 60 days following receipt of the complaint.
“Time is important, and you want things to happen promptly, but the most important thing is that things are thoroughly investigated,” Hays said.
But Clark said the time frame laid out in the Obama-era guidance was appropriate because it allowed for exceptions.
“Having absolutely no time frame is irresponsible,” Clark said.
Another change in the new guidance is a provision that allows for universities to facilitate a mediation process if both parties agree, a reversal of the Dear Colleague Letter’s assertion that mediation is inappropriate in sexual assault, even if voluntary.
‘They have no idea that Title IX covers bad language’
Though reforming Title IX has been a focus for DeVos, people still don’t know exactly what it is, Sutton said.
“I think most people hear of Title IX or campus sexual assault and they think, ‘You’re Brock Turner, you’re throwing someone on the ground passed out behind a dumpster and raping them,’” Sutton said. “They have no idea that Title IX covers bad language. They have no idea that Title IX covers touching on the arm when you didn’t want to be touched on the arm.”
In an interview with The Daily Tar Heel on Sept. 22, Chancellor Carol Folt said she’s optimistic that the school’s policy is suitable.
“The main thing we want to tell people is nothing about any policy is going to reduce our commitment to helping students trying to prevent sexual assault and helping students that become victims of sexual assault,” she said.
Sammie Espada, a UNC senior and the co-chair of student safety and wellness for student government, said she was disappointed that the University did not immediately respond to the changes.
“I understand they’re weighing the guidelines and stuff like that, and what’s going to happen going forward, but the priority on this University needs to be protecting survivors and making sure their voices are heard and that they feel supported on this campus,” Espada said.
“And I think any further delay makes survivors feel unsupported on this campus.”
Daily Tar Heel copy chief Karen Stahl contributed to reporting.
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