In the five years since a federal agency announced new rules governing how colleges should respond to allegations of rape and sexual assault, opponents have argued that student and faculty rights have been dangerously eroded.
The directive known as the “Dear Colleague” letter brought national scrutiny to the issue, upended the way most school officials responded to claims of sexual assault and made the problem a much greater priority for many schools. But opponents such as Robert Shibley, executive director of the Foundation for Individual Rights in Education, warned that colleges now use a standard of evidence so low that it’s dramatically different from a court of law, and inherently unfair.
S. Daniel Carter, a campus security consultant and victims’ rights advocate, counters that argument. Carter, who serves on the Board of the not-for-profit victim’s rights organization SurvJustice, writes why he believes the changes were badly needed. — Susan Svrluga
When Vice President Biden and U.S. Department of Education officials announced in 2011 landmark Title IX guidance dealing with how colleges and universities handle sexual assault, I had the incredible honor of being a guest along with my colleague Laura Dunn as we both provided input on the Dear Colleague letter. The vice president’s call to action got the attention of higher education focused on this issue like it had never been before, something that was long overdue and resonates to this day.
While many across the country were shocked by what they heard, and some were surprised by the scope of guidance issued for dealing with campus sexual assault, many of us on- and off-campus who work daily with it were not.
What was “controversial” guidance to some was well known among many practitioners. Given that many people were unaware of these guidelines, advocates viewed this announcement as an essential step in the process of establishing clear nationwide expectations.
The Education Department, for example, had applied a “preponderance of the evidence,” commonly referred to as “50 percent plus one,” standard in Title IX cases dating back at least as early as 1991.
Schools, however, had only been notified on a case-by-case basis about this expectation.
Upholding this standard is proper, because unlike criminal proceedings, colleges and universities are not determining whether someone can be imprisoned, but whether they violated school policies.
For most institutions this was not a radical departure from their normal procedures.
Russlynn Ali, head of the Education Department’s Office for Civil Rights who signed the 2011 letter, estimated at the time that “about 80 percent of colleges were already using the preponderance standard.”
The harshest sanction they can impose is expulsion for students and termination for employees.
Often the sanction is far less.
Federal courts, beginning with Dixon v. Alabama in 1961, have held for decades that accused students at state institutions must be afforded basic due-process protections.
Additional protections for both accused and accuser were added by Congress with 2013’s Violence Against Women Reauthorization Act.
Among other things, under implementing regulations for this law, colleges and universities must provide written documentation to both parties of the basis of their determinations, and if either party is allowed to appeal, both are.
While the criminal justice system certainly has an important role to play in dealing with campus sexual assault, colleges and universities do as well.
For many reasons, prosecutors decline to pursue prosecution, and when they do proceedings often take years to resolve.
It is left to colleges and universities to protect sexual assault survivors in the absence of a criminal resolution or in the interim. Title IX standards help ensure that the civil rights of these survivors are protected, and that their access to educational opportunities is not disrupted.