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Betsy DeVos Strikes Down Title IX 'Dear Colleague' Letter Behind Obama Campus Rape Tribunals

On Friday, the Trump administration took a powerful step in dismantling a negative legacy from the Obama years. Under President Obama, the Department of Education (DOE) pushed the "rape culture" narrative — that one in four women would be sexually assaulted on college campuses, and that colleges could not trust the police to handle these crimes. This created a perverse system of campus tribunals.

Obama's DOE ushered in this policy with a "Dear Colleague" letter in 2011, and doubled down with another guidance document in 2014. These documents reinterpreted Title IX of the Higher Education Act of 1972, turning a simple ban on discrimination on the basis of sex into a manifesto for colleges to proceed with extreme prejudice against anyone accused of sexual assault. Furthermore, these letters had the effect of a regulation, but were issued as guidance, allowing the Obama DOE to circumvent the usual rule-making process established by law.

In rescinding the Obama-era guidances, Candice Jackson, acting assistant secretary at the DOE's Office of Civil Rights (OCR), argued that the regulations harmed both those accused of sexual assault and their alleged victims.

"The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints," Jackson wrote.

Even schools have been frustrated by the regulations. "The guidance has not succeeded in providing clarify for educational institutions or in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires," the OCR acting head added. "Instead, schools face a confusing and counterproductive set of regulatory mandates, and the objective of regulatory compliance has displaced Title IX's goal of educational equity."

Jackson clarified the actual effects of these two pieces of guidance.

"These guidance documents interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct," she wrote. "The 2011 Dear Colleague Letter required schools to adopt a minimal standard of proof—the preponderance-of-the-evidence standard—in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing-evidence standard."

Furthermore, the 2011 letter "discouraged cross-examination by the parties, suggesting that to recognize a right to such cross-examination might violate Title IX." The letter also "forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis."

In other words, the 2011 letter insisted that schools could not trust the police, so they had to set up their own tribunals. It also urged them to deny basic due process rights (like the right to cross-examine a witness, and in some cases even the right to present evidence in their defense) to those accused of sexual assault.