San Francisco Chronicle

Lawyers argue DeVos’ complaint changes

- By Bob Egelko Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicl­e.com Twitter: @BobEgelko

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.”

 ?? Alex Edelman / TNS ?? Education Secretary Betsy DeVos’ department changed the standard of proof and other important guidelines for complaints of sexual assault and harassment on college campuses.
Alex Edelman / TNS Education Secretary Betsy DeVos’ department changed the standard of proof and other important guidelines for complaints of sexual assault and harassment on college campuses.

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