On September 22, 2017, the Department of Education, on behalf of the department’s Office of Civil Rights, withdrew extensive Obama-era guidelines on sexual violence issued in the “Dear Colleague” letters of 2011 and 2014.
The reason the department gave for the withdrawal was opposition to certain parts of the previous guidelines.
These oppositions include the requirements for schools to adopt a preponderance-of-the-evidence standard when considering evidence instead of the clear-and-convincing standard, the ability for complainants to appeal not-guilty findings in schools with appeals processes and the fact that schools were forbidden to rely solely on law enforcement’s investigations of criminal conduct and were required to establish their own systems to deal with such offenses.
The 2017 letter also criticized the time frame of investigations, stating that respondent’s rights to due process were being violated in favor of expedited investigations.
As stated in the 2017 Dear Colleague letter, “Those documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints.”
The withdrawal letter also deemed the previous guidance as “confusing and counterproductive.”
To remedy this, the department stated in the withdrawal that they would issue new guidelines while responding to public comment.
As schools waited for these new guidelines, the department instructed them to abide by the Q&A on Campus Sexual Misconduct, which was issued alongside the withdrawal, and a Revised Sexual Harassment Guidance from 2001, plus an affirmation of that guidance, issued in 2006.
At the time of the withdrawal, Timothy P. White, Chancellor of California State University, said the OCR letter would not change CSU’s existing policies in Executive Order 1097, which would remain in effect.
Article I of the order states, “All sexual activity between members of the CSU community must be based on Affirmative Consent. Engaging in any sexual activity without first obtaining Affirmative Consent to the specific sexual activity is Sexual Misconduct and constitutes a violation of this policy, whether or not the sexual activity violates any civil or criminal law.”
Karen Dubert, Deputy Title IX Coordinator and Complaint Resolution Manager from the Office of Equity, Inclusion and Compliance, affirmed that the CSU position aligns more closely with the 2011 Dear Colleague letter.
“Our policies have not been affected by the withdrawal,” she said. “We still use a preponderance-of-the-evidence standard.”
Preponderance-of-the-evidence, Dubert explained, is the lowest standard of evidence and means that it is more likely than not that something occurred.
With regards to the appeals process, Dubert said both parties of an investigation have similar rights.
“Both the complainant and respondent have the right to appeal to the Chancellor’s office,” she said. “Whatever one party gets, the other party should get too.”
Per CSU’s Executive Order 1097, each campus must have a Discrimination/Harassment/Retaliation Administrator and a Title IX Coordinator to investigate issues of Sexual Misconduct.
The policy goes on to say that even if a criminal investigation is initiated by law enforcement over the same allegations, campuses are required to conduct their own investigations, without relying on a separate law enforcement agency.
“We are not required to wait until a criminal investigation is done to do our own administrative investigation,” Dubert said. “As a campus, you still need to move forward with your investigation as long as you’re not interfering with any collection of evidence. You don’t have to wait for the outcome of a criminal trial.”
This position also deals with the withdrawal letter’s concern with the timeliness of investigations.
Dubert said the withdrawal letter probably refers to universities and campuses that do not complete investigations in a timely manner.
“Maybe they don’t have policies in place that specifically delineate when you need to complete investigations, and that can be difficult for a complainant and respondent who are going through a prolonged investigation,” she said.
Dubert said from the date the complaint is filed, CSU campuses have a 60-day working deadline to complete investigations.
It has been almost seven months since the withdrawal and the Department of Education has not issued new guidelines.
Referring to Chancellor White’s message, Dubert said that when the department starts the process of creating the new guidelines, the CSU system would participate.
“While the Department of Education may have withdrawn the guidelines, they’re still going to be engaged in a rule-making process to try and develop new ones, but I think the CSU is committed to making sure everyone has a fair and safe community around them now,” she said. “As a CSU system we can comment on whatever the new guidance will be. CSU is going to be actively participating in providing commentary and feedback as that progresses.”
In the meantime, she said, “I know our policies are very much in place.”
The Department of Education could not be reached for comment.
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