Outrage at the Department of Education's rollbacks of Obama-era Title IX protections for university students who are victims of sexual assault came to a head Wednesday when Candice E. Jackson, head of the department's Office of Civil Rights, said 90 percent of sexual assault accusations on campuses "fall into the category of 'we were both drunk.' " The incident drew responses from students and faculty across the country.
The department has made a number of changes to the way it handles investigations of sexual assault on campuses since Betsy DeVos was confirmed as Secretary of Education by a tie-breaking vote from Vice President Mike Pence in February. According to an internal department memo sent by Jackson, the OCR will scale back investigations into systemic issues of campus sexual assault and the department has made clear it will give an equal platform to those accused of sexual assault as well as the victims.
Although a decision is yet to be made on the issue, many people are wondering whether Jackson will rescind the Obama administration's 2011 "Dear Colleague" letter, which emphasized Title IX's explicit prohibition of discrimination “on the basis of sex in education programs or activities operated by recipients of Federal financial assistance," serving as a warning to colleges and universities that they would lose federal funding if they failed to comply with the new, stricter guidelines.
The most major and controversial provision in the letter, however, was the mandate directing universities to adopt a "preponderance of the evidence" standard in sexual assault investigations, meaning the claim has to be more likely true than not for a finding of wrongdoing. Advocates for the accused and men's rights groups are pushing Jackson to return to the higher "clear and convincing" standard, which falls between the preponderance standard and the "beyond a reasonable doubt" standard used in criminal investigations.
Jackson said in an interview with The New York Times the investigation and disciplinary process as it exists is improperly weighted in favor of the plaintiff and should be modeled to more closely resemble the criminal process.
"We have a justice system where nobody demands that the system itself be weighted in favor of a plaintiff,” she said. “In principle, there is no reason to depart from setting up a Title IX discipline process on campus that is anything other than fairly balanced and doesn’t prejudge and weight the system in favor of a finding. We don’t do that in our court system, our criminal justice system, and I see no reason why we would want to do it in a campus system either.”
Elizabeth Armstrong, University of Michigan professor of sociology, disagreed with Jackson's characterization, however. Armstrong, who is currently conducting a study on the Title IX compliance of hundreds of colleges and universities across the country, said there are important differences between criminal investigations and campus adjudication processes.
"The criminal justice system is set up to protect the accused because of the gravity of the sanction of incarceration,” she said. “The most serious sanction available to the university is expulsion. The goal of sexual misconduct adjudication processes is to ensure that all students have full access to education without experiencing discrimination on the basis of sex. The responsibility of the university is to ensure this through education and, in some cases, expelling some individuals from the community. It is of critical importance that both the claimant and the respondent are treated fairly in the process, and universities are, I think, trying very hard to do so."