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Title IX investigations face an uncertain future

On September 7, Education Secretary Betsy DeVos announced that her department would review measures put in place during the Obama Administration on how colleges and universities investigate sexual assault, with the idea of changing or even repealing some of them.
Those exact change that may be proposed or may go into effect is unknown, Missouri Western’s Title XI Coordinator Adam McGowan said.
“A lot of it is really speculation at this point. We don’t know what exactly she is looking at doing, and at the moment, she hasn’t done anything. She had that nice talk, she talked about the broken system, and then essentially said we are going to this notice on comment period and kicked everything down the road. She did some interviews later that made it pretty clear that they were going to rescind the 2011 ‘Dear Colleague’ letter.”
The 2011 Dear Colleague Letter was issued through the Department of Education’s Office of Civil Rights (ORC) during the Obama Administration. Essentially, it is federal guidance that told colleges and universities how to address sexual assault, prevention, education, awareness and investigations.
In particular, the letter said that it was appropriate to use the preponderance of evidence standard when investigating sexual assaults. This level of burden of proof requires that more than 50 percent of evidence needs to point in a certain direction to decide a case. This standard is also known as the more than likely standard.
Because the burden of proof is at 51 percent, this provides some equality into the investigation, McGowan explained.
“The preponderance of the evidence, since we’re talking about that 51-49 percent, kind of puts both parties on equal footing at the very beginning. Both parties are equally credible when you start. I think you put everyone on even footing, I think it leads to a more fair and impartial process.”
DeVos, McGowan said is likely to raise this standard of evidence called clear and convincing, which is more stringent. This possible change in standard of evidence would be a change that McGowan disagrees with.
“Likely, they’ll change it. I don’t think that’s right. I disagree with it. I think we do a good job here with the training we provide our investigators to be fair to both parties,” McGowan said.
According to McGowan, DeVos may be considering a change in the standard of evidence because some have argued the current standard disadvantages the accused in assault cases.
“That [possible change] seems to be in a direct response to a lot of complaints about the unfair process to the accused. There have been incidents where universities may have acted too swiftly and removed people without all the facts, without giving proper notice. But that’s one of things that’s already in there. We’re supposed to be giving notice.”
McGowan said the 2011 “Dear Colleague” Letter may have some legitimate criticisms in how it was applied, but to rescind it may worse consequences.
“The 2011 letter kind of swung the pendulum towards survivors’ and victims’ rights, so inevitably, we are due for a back toward the middle. Again, not so much that the problem is with what we have, but how we are applying it and the emphasis,” McGowan said. “I agree that there probably have been cases where due process rights were trampled or they weren’t given they’re due consideration. But to go that far, in my opinion, will see fewer reports.”
Overall, while changes are being contemplated, McGowan is uncertain that the problems will be solved by rescinding policy.
“I don’t disagree that there have been problems across the board and nationwide. I think a lot of it is not so much that we have the wrong tools, but that they’re just not being applied consistently, either due to lack of training, lack of experience, or lack of resources,” McGowan said.

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