When Education Secretary Betsy DeVos recently moved to undo an Obama-era expansion of Title IX enforcement, she left the world of higher education with a lot of questions. The old rules were meant to give more protections to victims of sexual assault on college campuses. DeVos says they go too far and deny those accused of assault due process. But at the University of Nevada, Reno, the people who work with sexual assault victims aren’t so sure.
Back in September, DeVos issued new guidelines for Title IX. That’s the federal law that ties funding for colleges and universities to efforts to eliminate discrimination based on sex.
It was originally used as a tool to better integrate women’s sports into collegiate sports, but in the last several years especially, schools have more frequently used Title IX to combat the problem of sexual assault on campus — something that happens to one in five college women and one in 16 men.
But DeVos says the rules have gone too far.
“The truth is that the system established by the prior administration has failed too many students,” DeVos said during that September announcement. “Survivors, victims of a lack of due process and campus administrators have all told me that the current approach does a disservice to everyone involved.”
The new guidance pulls back on a 2011 dear colleague letter, issued by the Education Department’s Office for Civil Rights, which was meant to give more protections for victims of sexual assault. It pushed for the use of a specific standard of proof, what’s called a preponderance of the evidence.
“So, a preponderance of the evidence isn't a very high standard,” says Denise Cordova, the Title IX coordinator at UNR. “If you're into percentages, it's 51 percent to 49 percent. If the scales are even when we're doing the investigation, whatever tips the scale is considered a preponderance of the evidence.”
She says UNR’s use of the standard for its investigations long predates the Obama Administration’s changes and doesn’t think it will change anytime soon, barring new requirements from the Education Department.
While preponderance of the evidence is the norm in civil courts, it’s been criticized in Title IX cases for being inadequate by some law groups, including the American Bar Association and the American College of Trial Lawyers. In a white paper released early this year, the ACTL described the rules as lacking “basic fairness,” adding that “under the current system everyone loses.”
Ritchie Berger is a leader within the ACTL and served on the task force that wrote the white paper. He says without the same due process rights found in a courtroom setting, preponderance won’t function the same way for colleges and universities as it does in a regular civil case.
“Because of the lack of the routine protections that an individual has in our judicial system -- right to counsel, active involvement of counsel, right of actual cross examination, right to a jury of your peers, right to a law-trained judge -- all of those things are necessarily missing from a campus investigation and adjudication,” Berger says.
He says the ACTL’s recommendation aims to make sure “both sides have fundamental fairness in the process,” but adds that no process will be perfect.
But not all lawyers agree preponderance is the wrong standard to use. Ann McGinley is a professor at UNLV’s Boyd School of Law, and she says a few high-profile Title IX missteps on the part of universities has colored the way people think about a standard used in all Title IX cases -- not just those involving sexual assault.
“The preponderance of the evidence standard is the standard that's traditionally used in all civil rights cases brought in the educational sphere,” McGinley says. “So if there's racial harassment, you use that same standard, and it seems odd to have a different standard for gender harassment than there is for racial harassment.”
And at UNR, some worry changing Title IX rules might make it less likely for a victim to report the crime at all.
Justine Hernandez works with Nevada CARES, an outreach organization at the university that focuses on interpersonal violence like sexual assault.
“What we know is those first people you disclose to, if you’re not met with kindness and unconditional support, and love and being believed, the increases of PTSD, anxiety disorder, major depressive disorder, all those things go up,” Hernandez says. “We need to support survivors. We need to believe them, we need to give them multiple avenues for justice. And to only give them one does a disservice to so many people that are just trying to get their college education.”
One of those survivors is Brooke. KUNR is not using her real name in order to protect her identity.
She was a freshman at UNR when she was sexually assaulted two times during separate incidents. She never reported either to the police or to the Title IX office because she didn’t want to retraumatize herself and re-expose herself to the social stigma that comes with reporting.
“I would rather not see either of them again or have an adult say all these horrible things about, ‘Well, what were you wearing, what happened,’ and have to re-live two of the worst nights of my life,” Brooke says.
And she says that even choosing not to report carried its own burdens, especially when she would see her assaulters walking around campus.
“No matter what, I can’t win. If I report it, I lose. If I don’t report it, I lose. And I’m the victim in each and every situation,” Brooke says.
Now victims and their advocates are waiting to see what will happen. The new guidance put out by DeVos -- which simply re-allows schools to use either preponderance or clear and convincing evidence -- is only temporary.
Until the Education Department finishes what’s called a notice and comment period, the standard process by which bureaucratic rules are written, it may still be months before there are concrete rules on how colleges should handle sexual assault.
Jacob Solis is a senior at the Reynolds School of Journalism.