A new guideline from the U.S. Department of Education will hold universities accountable to obtain the same evidence standards for all student misconduct and sexual misconduct cases.
This new guideline comes from the concern that some universities held sexual misconduct cases to a lower standard of evidence than other student misconduct cases.
“There were some universities that had the preponderance of the evidence standard only for their sexual misconduct cases,” Madison said, “and then they had a different standard - the clear and convincing standard - for all of their other student misconduct cases.” To clarify, Madison gave the hypothetical example of a student who was accused of theft would be held to a clear and convincing standard of proof - a higher standard - while a student accused of sexual battery would be held to a preponderance of evidence standard - a lower standard.
In an email sent to the DePauw community, Renee Madison, Title IX coordinator, wrote that DePauw’s current policies regarding sexual misconduct remain in compliance with the new changes that the Office of Civil Rights (OCR) has implemented.
Only “minor changes” will be necessary for changing DePauw’s sexual misconduct policies, according to Madison.
“There is nothing at this point that will result in a change in DePauw’s Title IX process,” President Mark McCoy said. “I am very confident in the work of Renee Madison in our Title IX office and know that we are all joining together to eradicate sexual assault on our campus.”
The email, sent on Sept. 22, was in response to the U.S. Department of Education’s decision to rescind two Obama-era policies released in 2011 and 2014 regarding the Title IX process that dictates how a university should address reported sexual misconduct.
According to a U.S. Department of Education press release, Betsy DeVos, secretary of education, found the current Title IX guidelines applying to sexual assault accusations to be unfair. According to DeVos, the system favored the accusing student over the accused.
Title IX is “a federal law, enacted in 1972, which protects students who participate in education programs or activities from discrimination based on sex,” according to the DePauw Title IX: Equity and Access page. Title IX only addresses public and private schools with federal funding, although some states have enacted similar laws.
The 2011 and 2014 Title IX guideline updates provided colleges and universities with guidelines for how sexual misconduct should be handled when it is reported on campuses. Universities may use slightly different measures when applying this process; however, in all hearings, it must be proven that the accused student most likely committed the crime with a “preponderance of evidence” standard of proof.
DePauw holds a preponderance of evidence standard of proof for all kinds of student misconduct, including sexual misconduct.
“This is interim guidance, so we don’t have guidance that has been issued that has said we’re going one particular direction. We have an opportunity to provide public comments to the DePartment of Education to let them know this is what we think it ought to be but we don’t have that guidance yet,” Madison said.
The policy change will hold universities accountable to keep their standard of proof consistent when dealing with both student misconduct and sexual misconduct.
Rescinding these guidelines may make it much more difficult for survivors of sexual misconduct to seek justice at universities where the standard of proof is higher. Despite these changes, DePauw students should keep in mind that, “DePauw remains committed to preventing and addressing sexual misconduct and interpersonal violence on our campus, as well as supporting any student who has been impacted by the trauma of sexual violence.” Renee Madison, Title IX Coordinator, wrote in her email.
DePauw’s preponderance of evidence standard of proof will remain unchanged, as it is consistent with OCR’s new guidelines.
At DePauw, cross-examination of “witnesses or parties” throughout the “Community Standards or Sexual Misconduct and Interpersonal Violence processes,” will still be impermissible, according to Madison’s email.
According to a blog post by the National Women’s Law Center, DeVos has failed to meet with sexual misconduct survivors in the past.
Candice Jackson, acting assistant secretary for civil rights, said, “the accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right’,” according to an article published by The New York Times.
Regardless of Title IX changes, DePauw will continue to offer resources on campus for survivors and students. Sexual Assault Survivor Advocates (SASA), the Title IX and Public Safety offices, Sexual Assault Nurse Examiner (SANE), the Women’s Center, Campus Living and Community Development (CLCD), as well as counseling services, all serve as resources for survivors and students.
“My understandings of the changes are it can have an impact on the national level redescribing what is sexual assault and how you can go through the process of reporting that” Abby Lacy, junior, said, “but on a local level here at DePauw my understanding is not much is changing.”
Despite any current or future changes to the Title IX process, Madison reminded students in her email to always “commit to consent.”