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White House lifts Obama-era guideline for sexual assault cases at colleges

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Nick Anderson, The Washington Post

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 antidiscrimination 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. "Schools must continue to confront these horrific crimes and behaviors head-on. 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."

Catherine Lhamon, who was assistant education secretary for civil rights under Obama and now chairs the U.S. Commission on Civil Rights, denounced the action.

"The Trump administration's new guidance is dangerously silent on critical parts of Title IX," Lhamon said in a statement. "This backward step invites colleges to once again sweep sexual violence under the rug. Students deserve better, the law demands better, our college and university community must continue to commit to better, and we as a country must demand more from the U.S. Department of Education."

Friday's action formally withdrew the civil rights office's "Dear Colleague" letter of April 4, 2011, and a follow-up statement of "Questions and Answers" that was issued on April 29, 2014.

Laura Dunn, a lawyer with the District of Columbia-based SurvJustice, said the department's actions will allow colleges to give an unfair edge to the accused in sex discrimination cases. "This is simply unlawful, to flip a civil right on its head," Dunn said in a statement. She said the department had acted beyond its authority.

Robert Shibley, executive director of the Foundation for Individual Rights in Education in Philadelphia, which opposed the 2011 letter, praised the development. "It's a great day for fundamental fairness on campus," Shibley said. He called it a "necessary but not sufficient step," acknowledging that colleges retain control over their internal misconduct rules and proceedings.

It is by no means certain whether, or how much, colleges will change their protocols. University of California President Janet Napolitano told reporters Wednesday that she does not expect the 10-campus UC system to drop the preponderance standard.

"UC's pledge to protect our students and employees from sexual violence and sexual harassment remains unchanged," Napolitano -- who was homeland security secretary under Obama -- said in a statement Friday.

Terry Hartle, senior vice president of the American Council on Education, which represents college and university presidents, said schools are likely to take a cautious approach while they await definitive rules. "Schools will respond conservatively to this," he said. "Most of them will leave in place what doesn't need to be changed."

But Hartle added a caveat: "All institutions are going to need to look at their processes to make sure they're not biased against the accused," he said.

The interim guidance could also affect federal civil rights investigations at some colleges and universities. As of this month, the department reported that more than 250 schools faced inquiries related to their handling of sexual violence complaints. Those investigations are ongoing, officials said, but certain cases could be re-evaluated if they are directly related to the 2011 guidance that has now been rescinded.

FEATURED PHOTO: U.S. Education Secretary Betsy DeVos arrives at the dedication ceremony of Michigan State University's new Grand Rapids Medical Research Center on Sept. 20 in Grand Rapids, Mich. (Cory Morse, The Grand Rapids Press/AP)