Betsy DeVos is starting to roll back the Obama-era fight against campus sexual assault

Education Secretary Betsy DeVos announced Friday morning that she is rescinding the Obama administration’s guidelines for how universities should respond to allegations of campus sexual assault, giving colleges the option to put a greater burden of proof on the accusers in such cases.

The move was a sudden one, coming a few weeks after DeVos said she would not rescind the current guidelines but rather would start the process of changing them by opening up a public comment period to get feedback from schools, students, and faculty first.

On Friday, the Education Department issued a new interim set of guidelines to universities on how they should treat allegations of sexual assault and harassment on their campuses. They also announced the withdrawal of the 2011 guidance that the Obama administration initially used to push colleges to do more on sexual assault.

“Schools must continue to confront these horrific crimes and behaviors head-on,” DeVos said in a statement released Friday. “There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

Colleges are directed to “formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty” — including free speech.

DeVos first announced her department’s intention to rewrite the Obama-era guidelines in a speech earlier this month, which harshly criticized the Obama administration’s approach as “intimidation and coercion.”

The current guidelines hurt both sexual assault survivors and people who are accused, DeVos said in a speech at the Antonin Scalia School of Law at George Mason University on September 7. She also said those guidelines make college administrators less likely to report issues on campus, as they are afraid the federal government will start to investigate them.

“The era of ‘rule by letter’ is over,” DeVos said in her speech, referencing the 2011 letter Obama administration officials sent colleges that signaled the Office for Civil Rights would aggressively investigate colleges for mishandling sexual assault. “Through intimidation and coercion, the failed system has clearly pushed schools to overreach. With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.”

The Education Department gets a say over sexual assault cases on campus from Title IX, part of a major federal higher education law.

Although Title IX is best known for opening high school and college sports to women and girls, the law explicitly bars any schools that get federal dollars from discriminating based on gender — which, since 1976, has included preventing and addressing sexual harassment.

Even if the police are investigating allegations of rape or sexual assault, colleges must also conduct their own investigations to ensure the victim’s right to an education is not being violated. That’s in part because colleges can do things the police can’t — like shifting dorm assignments or class schedules so a student doesn’t have to come in contact with the person she accused of rape.

In 2011, the Obama administration sent a letter, known as a “Dear Colleague letter,” to colleges and universities to remind them of this obligation. Technically, those letters aren’t a formal rule change. But because the ultimate penalty for Title IX violations can be a loss of federal funding — a death knell for colleges that depend on federal student loans and grants — the guidance had teeth. (No college has ever been denied federal funding for a Title IX violation; usually, the Education Department reaches an agreement with the college that it will change its policies.)

One of the most consequential and controversial parts of the letter dealt with the standard of evidence colleges use when finding students responsible for sexual assault. In a criminal court, someone accused of a crime has to be found guilty beyond a reasonable doubt. Many colleges, in sexual assault cases, had used a slightly lower standard of “clear and convincing evidence.” The Obama administration told colleges to use instead the “preponderance of the evidence” — a greater chance that someone is guilty than not — in their student justice systems, which is the standard of proof in a civil trial.

It was part of a larger move on the Obama administration’s part to tackle sexual assault on college campuses, which also included a campaign from the White House called “It’s On Us” and outreach by Vice President Joe Biden.

Advocates cheered the move as a sign that sexual assault was finally being taken seriously. The Education Department’s Office of Civil Rights started investigating more than 50 colleges after receiving complaints that those colleges had mishandled cases of sexual assault and were misreporting the number of cases.

Since the new regulations were put in place, the number of investigations into schools rose dramatically. Since 2011, a total of 435 investigations were opened into whether colleges were mishandling cases; 75 cases have been resolved, while another 360 remain open.

But some argued that the Obama administration had pushed schools too far in the other direction — out of concern for protecting victims’ rights to an education, these critics argued, the administration was disregarding the rights of students who were accused of sexual assault.

In 2014, a group of 28 Harvard Law School professors took the unprecedented step of writing a letter pushing back on the Obama guidance, saying it had caused Harvard’s administration to overcorrect to the extreme.

“I think they created an environment where schools felt in order to keep their federal funding, they had to change their policies to ones stacked against anybody accused,” said Elizabeth Bartholet, one of law professors who signed the letter and faculty director of Harvard Law School’s Child Advocacy Program.

Harvard faculty said they were dismayed at the school’s new sexual assault policy, which they characterized as failing to give enough representation to the accused, putting in an overly broad definition of sexual harassment, and being formulated without staff input. Ultimately, Harvard Law School created its own separate policy.

“There’s a lot of agreement that there is sexual assault and there should be good, fair procedures,” Bartholet said. “In my view, you just undermine that effort when you create the policies we now have.”

DeVos announced Friday morning that she was withdrawing the Dear Colleague letter. A new Q&A on colleges’ responsibilities in handling sexual assault allows colleges to use a higher standard of proof when finding students responsible for sexual assault. They can stick with the preponderance of the evidence, as the Obama administration required, or instead require “clear and convincing evidence” to hold a student responsible.

More changes could be coming. The Education Department is still planning to ask for public comment and possibly write new regulations — which would be more binding and difficult to overturn than guidance — on Title IX issues.

One possibility from that process is a narrower definition of what constitutes sexual misconduct, especially in sexual harassment cases. The current regulations define sexual harassment as “unwelcome conduct of a sexual nature.”

Bartholet and the Harvard law professors agree a narrow standard is appropriate, and have advocated for a definition closer to workplace sexual harassment, where the accuser has to demonstrate that the person harassing them created a hostile environment without their consent.

DeVos, in her speech earlier in September, also said she wanted to make sure harassment definitions did not impede free speech on campuses.

“Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes,” she said in the speech earlier this month. “Any perceived offense can become a full-blown Title IX investigation. But if everything is harassment, then nothing is. Punishing speech protected by the First Amendment trivializes actual harassment.”