Lawyers argue DeVos’ complaint changes
The Trump administration failed to explain why it was changing the standard of proof and other important guidelines for complaints of sexual assault and harassment on college campus, a lawyer for women’s rights advocates argued Thursday to a federal magistrate in San Francisco, who didn’t seem entirely persuaded.
Education Secretary Betsy DeVos issued new guidelines two years ago telling college disciplinary boards to grant more protections to the alleged assailants, most of them men. The changes included a more demanding standard of proof — allowing the accusations to be proven by “clear and convincing evidence” rather than just a “preponderance,” or morelikelythannot — and allowing only the accused party, rather than both sides, to appeal an unfavorable ruling within the school’s disciplinary system.
The new standard of proof “upended two decades’ worth of settled standards” with virtually no explanation, attorney Karianne Jones of the nonprofit group Democracy Forward, told U.S. Magistrate Jacqueline Scott Corley. For most of the changes, Jones said, although DeVos’ department announced the new standards, “there was no acknowledgment by the department that a change had taken place” from the previous guidelines.
Women’s rights groups in the nationwide lawsuit, including Equal Rights Advocates in San Francisco, say DeVos’ guidelines discriminate against women and have been adopted by many schools. Arguing that the changes were not accompanied by the rational explanation required by federal law, they want Corley to overturn the new standards or at least allow them to take their case to trial in her court.
The magistrate did not issue a ruling during the 40minute hearing but suggested that at least some of DeVos’ changes were voluntary guidelines, not binding rules, or had been accompanied by adequate explanations.
For example, she said, DeVos’ department told the public that the morelikelythannot standard of proof in assault and harassment cases had led to unfair results and caused problems for some schools.
“Why isn’t that enough?” Corley asked.
It was “incredibly vague” and cited no specific evidence of unfairness or problems, Jones replied. She said the former standard had been in place since 1995, had been endorsed by the Department of Education under multiple administrations and had been followed by most U.S. colleges.
But Justice Department attorney Steven Myers said a “substantial minority” of colleges had been following the stricter “clear and convincing evidence” standard for many years. Allowing a student to be punished based on a “minimal standard of proof,” a preponderance of the evidence, “led to proceedings that were unfair,” he said.
The new guidelines also allow the student who filed the complaint to be questioned about her sexual history, which was formerly off limits. Other changes allow the opposing sides to take their dispute away from the school disciplinary board and refer it to a mediator — a process that had been prohibited for allegations of sexual assault — and suggest that incidents taking place off campus should not be grounds for discipline.
Jones said DeVos’ department provided no explanation for allowing evidence of a student’s sexual history or for rescinding the ban, in place since 2001, on mediation of sexual assault cases. She said colleges that decline to follow the department’s standards can lose federal funding.
Myers responded that the government was simply withdrawing a prohibition on evidence of sexual history that had been issued under President Barack Obama’s administration in 2011. And Corley noted that the new standards provide for mediation only if both sides consent.
“I think a rule that would be a bright line (requiring mediation) would be unreasonable,” Corley said. “This is voluntary.”