Home > Uncategorized > Kavanaugh Hearings and DeVos’s Repeal of “Obama Guidance” Intersect

Kavanaugh Hearings and DeVos’s Repeal of “Obama Guidance” Intersect

October 1, 2018

An article by AP reporter Maria Danilova that appeared in several newspapers across the country flagged an unsettling link between Betsy DeVos’ decision to repeal the so-called “Obama Guidance” on investigations of sexual misconduct on campus and the allegations brought forth by Christine Blasey Ford against Supreme Court nominee Bret Kavanaugh. Some background:

During the Obama administration the Department of Education issued a “Guidance” document establishing a lower threshold of evidence in campus hearings on sexual misconduct with the expectation that those who experience sexual assaults while on campus would bring those cases forward so that campuses would be safer for women. This was unsettling for men and conservatives, who generally supported the existing thresholds. Ms. Danilova does a good job of laying out the arguments on both sides:

DeVos has argued that the policy put in place under President Barack Obama is skewed against the accused. She is expected to issue new rules in the near future.

At stake is whether schools should require higher standards of evidence when handling complaints and whether both parties should have access to that evidence. Also under review is the use of mediators and the possibility of the accuser and the accused cross-examining each other.

DeVos’ new guidelines are expected to address whether schools should have to investigate as soon as they are aware of alleged misconduct or only after a student files a formal complaint.

Many victims of sexual violence never take that step. Ford didn’t, and only acted decades later when she learned that Kavanaugh was on a short list for the Supreme Court.

Advocates point to the Larry Nassar sexual assault scandal at Michigan State University and say that victims are shocked and unwilling to relive their traumatic experience. They say it should be the school’s responsibility to investigate.

But those who support Ms. DeVos decision to roll back the “Obama Guidance” do so based on their sense that any allegations of sexual misconduct assume put the burden of proof on the accused:

In conservative circles, “the sympathy right now is very strong with the concern that some men are wrongly accused,” (Fordham President Mike) Petrilli said. “This is an administration that cares about its base.”

A student may choose whether to report an assault to police or to have it investigated by a university under Title IX. Some students choose not to report attacks in part because police and the courts require higher standards of evidence. Students also may feel more comfortable dealing with university investigators than with police following a trauma.

Petrilli said the Senate hearing demonstrated that universities, like Congress, are ill equipped to handle such cases.

“If people were faulted, that should be handled by the justice system rather than asking universities to create some shadow system themselves,” he said.

Cynthia Garett, who heads Families Advocating for Campus Equality, said one false accusation can ruin a student’s life. She said many of the accused students she represents experienced traumatic flashbacks when they watched Kavanaugh testify. Garett said she supports DeVos’ plan to give a greater voice to the accused.

Where do colleges stand on this issue? A year ago an article by Andrew Kreigbaum in Inside Higher Ed noted that even if the 2011 Obama Guidance is rescinded many elements of the guidance are now enshrined in law.

The reauthorization of the Violence Against Women Act in 2013 prescribed new standards for campus disciplinary proceedings. And a number of court decisions involving Title IX of the Education Amendments of 1972 lawsuits have backed up the finding that institutions have an obligation to investigate and adjudicate campus assaults.

The impending debate is likely to focus as a result on questions involving the standard of evidence that should be used in reaching decisions and the ability of students to challenge the other party in the course of proceedings.

“The Title IX regulations and court precedent make clear that schools have a responsibility to respond promptly and equitably to reports of sex discrimination, including sexual harassment, including sexual assault,” said Alexandra Brodsky, a lawyer at the National Women’s Law Center and a co-founder of Know Your IX. “Schools will still need to provide accommodation necessary to help survivors stay in school and keep learning. They will still have to take steps to protect the larger campus community. They will still have to have a fair disciplinary process to investigate reports.”…

Brodsky said courts in other noncampus settings have found options to allow the accused to question an accuser’s account without direct confrontations.

“The guidance provided helpful insight into best practices for putting together effective truth-seeking investigations that don’t create a hostile environment,” she said. “Revoking the guidance deprives schools of clarity and of helpful advice.”

Based on what I’ve read about in local and national media since the issuance of the “Obama Guidance”, it is evident that campuses across the country have had heartfelt debates on how to address the topic of sexual assault and, in doing so, have raised awareness of the issue among current students and alumni and between campus police forces and local law enforcement officials. Moreover, the campuses have been compelled to examine the conduct of students on campus that might contribute to sexual assaults… specifically the drinking that takes place in schools… the drinking that contributed to Mr. Kavanaugh’s alleged misconduct.

Given that most of the Guidance is now enshrined in law, Ms. DeVos and the political winds that are blowing against her, she might be advised to wait on making a decision on rescinding this Guidance… but then again, given the pending election and the need to activate the GOP’s base, I wouldn’t be surprised to see a debate on both the guidance AND the Violence Against Women Act which is under review. We are living in contentious and interesting times.

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