Trump administration changes how campus sexual assault is dealt with

Washington — The Trump administration on Friday withdrew Obama-era guidance on how schools should respond to sexual violence complaints, giving them flexibility to use a higher standard of evidence for sexual misconduct cases and formally shifting the federal stance on what has become an explosive campus issue.

The action followed through on a pledge Education Secretary Betsy DeVos made on Sept. 7 to replace what she called a “failed system” of civil rights enforcement on matters related to campus sexual assault. In her view, the government failed under President Barack Obama to find the right balance in protecting the rights of victims and the accused.

Under Obama, the Education Department’s Office for Civil Rights had declared in 2011 that schools should use a standard known as “preponderance of the evidence” when judging sexual violence cases that arise under the anti-discrimination law known as Title IX.

Common in civil law, the preponderance standard calls for enough evidence to tip a judgment to the conclusion that something is more likely than not to be true. That is lower than the “clear and convincing evidence” standard that had been in use at some schools. Victim advocates viewed the April 2011 letter as a milestone in efforts to get schools to heed the longstanding problem of campus sexual assault, punish offenders and prevent violence. It also dovetailed with a high-profile campaign by the Obama White House to combat sexual violence.

Now, under President Donald Trump, the Office for Civil Rights is declaring that schools may use either standard while the government begins a formal process to develop rules on the issue. How long that will take is not clear. A department official said the administration does not want to rush the process.

The department’s interim guidance requires schools to address sexual misconduct that is “severe, persistent or pervasive,” and conduct investigations in a fair, impartial and timely manner. Schools will be allowed to have informal resolution to cases, through mediation, if appropriate and if all parties agree. Obama’s team did not favor mediation, declaring it “not appropriate” for dealing with sexual assault allegations.

“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” DeVos said in a statement.