The Trump administration’s view of how universities should handle sexual-misconduct inquiries sets up a quandary for Duke University and UNC Chapel Hill, as neither presently comply with one of the key tenets of the new “guidance” the U.S. Department of Education issued on Friday.
On its face, the document appeared to give universities a choice when it comes to setting the standard of proof officials should use when weighing an accused student’s guilt or innocence on a misconduct charge. But a footnote buried in the text actually limits their freedom of action considerably, presuming they want to stay out of trouble with federal regulators.
It specified that a university’s choice in sex-misconduct hearings “should be consistent” with whatever standard it uses to weigh evidence in other sorts of disciplinary cases, on that grounds that a discrepancy “suggests a discriminatory purpose.”
For Duke and UNC-CH, the trouble is that both now use in sex-misconduct cases the “preponderance of evidence” standard former U.S. President Barack Obama’s administration favored, and a tighter “clear and convincing evidence” standard for all other matters.
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But Duke, at least, plans no immediate change. Through chief spokesman Michael Schoenfeld, the Durham institution signaled that it’ll await the outcome of the formal federal rulemaking effort U.S. Secretary of Education Betsy DeVos and other Trump administration officials have promised.
“Our current student sexual misconduct policy remains in place while we await the Department of Education’s formal guidance following the standard rulemaking process,” said Schoenfeld, Duke’s vice president for public affairs and government relations. “In any case, Duke remains dedicated to making our campus a safe environment for all students to learn and grow.”
UNC-Chapel officials appeared to follow suit.
“We are closely reviewing the new guidance and will follow the upcoming formal rulemaking process to determine the impact on the university,” said Felicia Washington, vice chancellor for human resources, equity and engagement. “We take every report of sexual misconduct seriously. We are committed to the ongoing safety and well being of our students, to providing appropriate care, support and resources, and to ensuring a fair process for all parties involved.”
N.C. Central University, meanwhile, seemed clear of obvious problems because its Student Code of Conduct says “preponderance is the standard of proof by which all student conduct decisions are made” on its campus.
It adds that by that, NCCU officials are invoking the common understanding of preponderance, namely that students will face punishment if a hearing concludes it’s more likely than not that they violated a campus rule.
As they released the new guidance on Friday, DeVos’ aides rescinded two Obama-era memos on the subject, including one from 2011 that prescribed the use of a preponderance of evidence standard in sex-misconduct hearings.
Obama’s aides argued that preponderance is a common standard in civil litigation, particularly in civil rights cases. The federal say in the matter comes from the Title IX gender-discrimination law and from the power of the purse it wields as a major source of funding for university research and student financial aid.
Prodded by among others former Vice President Joe Biden, officials acted because they believed many universities weren’t acting aggressively enough to prevent campus rapes and other forms of sexual misconduct.
Critics of the prior administration’s move, including DeVos and her Acting Assistant Secretary for Civil Rights Candice Jackson, have argued their predecessors overstepped by failing to put their idea through the wringer cabinet departments and other federal regulatory agencies normally use to draft rules.
It requires advance notice, publication of the text of a proposed rule and a lengthy public-comment period before officials can add it to the Code of Federal Regulations.
DeVos on Sept. 7 promised to launch what she termed “a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way” to deal with the issue.
But Friday’s action suggested that the Trump administration is every bit as willing as its predecessor to use interim “guidance” statements to pressure colleges to bend the knee. Though technically non-binding, they signal how the education department might view discrimination complaints, and in extreme cases the grounds on which regulators may choose to pursue discrimination lawsuits.
A memo from Jackson also issued on Friday faulted the Obama administration for forcing schools to adopt “a minimal standard of proof” when many “had traditionally employed a higher clear-and-convincing-evidence standard.”
Duke in point of fact had used the clear and convincing standard for all disciplinary matters through the 2010-11 school year.
For 2011-12, the private university switched to preponderance of evidence for sexual-misconduct cases only, retaining the prior standard for use in judging issues like plagiarism allegations and alcohol-rules violations. That year’s edition of the Duke Community Standard in Practice said campus officials see clear and convincing as meaning a student’s guilt is “reasonably certain” or “highly probable.”
UNC-CH likewise has retained clear and convincing as the benchmark for most Honor Code violations.
The new guidance anchored its argument for consistency in its 19th footnote, citing a 2016 U.S. District Court decision out of Massachusetts that in theory remains non-binding in any other part of the U.S., indeed on any other federal judge.
The author of the Massachusetts decision, U.S. District Judge Dennis Saylor, reasoned a discrepancy could taken as “part of an effort to tilt the playing field against accused students.”