Washington — Several Michigan universities said Friday they planned no immediate changes to their policies and procedures after the Trump administration announced it had scrapped Obama-era guidance on investigating campus sexual assault.
The U.S Department of Education replaced the old guidance with new, interim instructions that allow universities to require higher standards of evidence.
“To be very clear, one sexual assault is one too many. It is horrible and lamentable, but the current failed system didn’t work for students, it didn’t work for institutions, it didn’t work for anyone,” said Education Secretary Betsy DeVos at the Mackinac Republican Leadership Conference. “It didn’t work because unelected and unaccountable political appointees pushed the guidance thorugh without any period for comment from those who walk side-by-side students every day. The time for inefficient and ineffective mandates is over.”
The guidance released in 2011 and then updated in 2014 instructed universities to use a “preponderance of the evidence” standard when assessing and investigating a claim of sexual assault.
DeVos’ new interim guidelines let colleges choose between that standard and a “clear and convincing evidence” standard, which is more difficult to meet.
The temporary rules will be in place while the department gathers comments from interest groups and the public and starts the rule-making process to put new official guidance in place under Title IX, a federal law prohibiting sex discrimination.
“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,” she said.
Andrew Miltenberg, a New York lawyer who represents students accused of sexual assault, described Obama’s standard as only “50.1 percent certain” and said that it ignored the presumption of innocence and put the burden on the accused to prove that the assault did not happen. Miltenberg said the system proposed by DeVos is much more fair.
“Certainly, it’s a much more stringent standard, and one that is less open to subjective interpretation,” Miltenberg said.
Three Michigan schools indicated Friday they would continue to use the “preponderance of the evidence” standard during the interim period.
A University of Michigan spokeswoman said the school’s current policy on student sexual misconduct – implemented in 2016 – is consistent with the department’s interim guidance, and no immediate changes are necessary.
Last week, UM President Mark S. Schlissel wrote to the campus community to stress that sexual misconduct education and prevention programs and counseling would continue to be available, despite policy changes underway at the federal level.
Michigan State University also plans no immediate changes to its policies and procedures in light of the interim guidance, a spokesman said.
“MSU leadership is reviewing this information Jessica Norris, MSU’s Title IX coordinator, said in a statement. “I will work closely with President Simon and key campus stakeholders to review and determine the impact on university policy and procedures.”
Norris added that an ongoing third-party review of the MSU’s Title IX program would serve as an “opportune time to measure our progress and compare our policies and practices against national best practices.”
Wayne State University has used the “preponderance of the evidence” standard for its administrative matters for more than 20 years and will continue to do so, spokesman Thomas Reynolds said Friday.
The school plans no changes to its policies and procedures in response to the department’s interim guidance, he said.
“Wayne State will continue to follow the law as codified under Title IX,” Reynolds said. “Wayne State will continue to maintain a compassionate and sensitive approach to all parties.”
A student may choose whether to report a claim of assault to police or to have it investigated by a university under Title IX.
Many students choose not to turn to law enforcement because many such cases go unprosecuted as police and the courts require higher standards of evidence. Also, many victims are traumatized and may feel more comfortable to deal with university investigators, rather than with police.
The Education Department’s Office for Civil Rights is currently investigating 360 sexual violence cases under investigation at 258 post-secondary institutions.
The Department said any agreements reached with schools as part of investigations that have already been completed will stay in place, while continuing investigations may be reevaluated.
Advocates for victims and women’s rights lashed out at Friday’s announcement.
Rep. Debbie Dingell, D-Dearborn, called DeVos’ decision an “outrageous affront” to survivors of sexual assault, predicting it would “turn back the clock” to a time when survivors of rape and assault stayed silent, afraid to be ostracized for speaking out or ignored.
“We must protect due process, but what we cannot do is again tip the scales of justice against survivors,” Dingell said in a statement. “This decision does exactly that – it discourages survivors from speaking out and seeking justice and sends a message that instead of support, they will be met with doubt and skepticism. This is shameful and unacceptable.”
Fiana Arbab, board member of the Michigan Student Power Network, added Friday’s news was “exactly what she feared.”
“Now, if university officials do choose to adopt a clear and convincing standard, it makes it that much harder for survivors to prove they were assaulted,” said Arbab, who graduated from UM Dearborn in April.
“DeVos has shown us whose rights she is going to prioritize in the next four years.”
Fatima Goss Graves, President and CEO of the National Women’s Law Center, said the new rule will have “devastating” impact on students and schools.
“It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law, and make campuses less safe,” Graves said in a statement. “This misguided directive is a huge step back to a time when sexual assault was a secret that was swept under the rug.”
Detroit News staff writers Melissa Nann Burke, Jonathan Oosting and the Associated Press contributed.
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