Dept of Education Rescinds College Sexual Assault Regulations

The US Department of Education, led by Betsy Devos, announced today that it has reversed Obama-era directives regarding college campus sexual assault investigations. The Department of Education issued new temporary rules that allow and encourage, but do not require, colleges to set a higher burden of proof before a student can be disciplined, suspended or expelled based on a sexual assault investigation.

The Rules Prior to President Obama

Prior to President Obama's election, many if not most colleges required that an accusation of sexual assault against a student be proven by a heightened standard of clear and convincing evidence. This is higher than the civil standard used in court when a person sues someone else for money damages - the preponderance of the evidence standard. However, it is lower than the highest burden of proof in the law, the proof beyond a reasonable doubt standard applicable in criminal cases.

The Rules Under President Obama

Starting in 2011, the Department of Education’s Office of Civil Rights began to insist that colleges would violate Title IX, the federal gender equality in education law, and risk losing federal funding unless they adjudicated cases using the weaker 'preponderance of the evidence' standard. Most if not all colleges, either afraid of losing federal funding or in agreement with the Obama administration, changed the rules to this lower standard.

This weakened burden of proof and other aspects of the sexual assault investigation/disciplinary process became highly controversial, as detailed in The Atlantic and in other media coverage and academic writings. Many law professors signed a protest letter contending that the rules violated the accused student's right to due process. Students have been wrongfully disciplined, suspended, expelled. Colleges have placed damning records of "findings" against students in their permanent record, destroying reputations and making it impossible for them to pursue other educational opportunities. Some accused students sued their colleges in court, and some of them won their cases.

Our Experience

We have represented and assisted accused students (including male, female / LGBTQ) with respect to a number of these university sexual assault investigations. We have seen cases where the complaining witness, after the fact, deleted SMS messages and chat messages with friends that would tend to suggest that there was no sexual assault, in order to conceal the messages from the university sexual assault investigators and from law enforcement. We have seen multiple cases where the accusation of sexual assault was determined to be unfounded after a thorough investigation, including cases at Dartmouth University, Keene State College, and Southern New Hampshire University. We believe that the rules for these investigations and disciplinary proceedings need to be changed to enact better protections for the accused.

We are strong supporters of Title IX, a law which for decades has promoted, provided funding for and enforced gender equality in admissions, academic opportunities, and sports participation on college campuses. In addition, we have represented victims of sexual violence and certainly believe that victims deserve protection and a fair process. However, we are relieved that the federal government will no longer pressure colleges to either eliminate basic due process protections for accused students. The only system that promotes justice is a system that is fair to everyone involved. -- Ted Lothstein and Richard Guerriero.