Some prefer ‘preponderance’
As the Department of Education starts the process of writing new regulations for campus sexual-misconduct investigations, some colleges have already promised to ignore the government’s interim guidance.
Some states have gone even further, enshrining elements of the Obama administration’s previous nonbinding guidance and setting up a possible showdown with the Trump administration.
Education Secretary Betsy DeVos* triggered widespread backlash from sexual assault activists by rescinding Obama administration “Dear Colleague” letters that enforced a low evidence standard and gave few procedural protections to accused students.
But without an administration friendly to their cause, advocacy groups such as Know Your IX and End Rape on Campus are moving to state legislatures to further their initiatives, building on progress they have already made in one-party blue states such as California, Illinois and New York.
Pioneer of ‘yes means yes’ plans to go even further
Know Your IX has a comprehensive “state playbook” outlining their desired policies for dealing with campus sexual assault. The organization’s website reads: “Know Your IX’s State Policy Playbook outlines key reforms that students, advocates, and state policymakers can pursue to support survivors on campus, keep students safe, and end gender-based violence in school.”
End Rape on Campus says that a “state-by-state strategy is a promising tactic” for advocates to undertake “in conjunction with federal policy advocacy” to change laws.
Its supported policies include “age-appropriate consent and healthy relationships education from elementary school to college” and ending statutes of limitation on sex crimes. The organization was co-founded by a student whose own alleged campus rape has been questioned in two recent investigations.
In 2014, California started requiring colleges and universities in the state to use the “preponderance of evidence” standard in sexual assault investigations or risk losing their state funding, just as the 2011 federal Dear Colleague letter had done with regard to federal funding.
The so-called “yes means yes” law also changed California’s definition of sexual consent to “affirmative,” meaning sex is considered nonconsensual if all parties don’t provide consent through words or clear nonverbal cues throughout their sexual encounter. Illinois also enforces the affirmative consent standard but not the preponderance evidence standard, according to E. Everett Bartlett, president of the due-process group Stop Abusive and Violent Environments.
"Senate Bill 169, now on the governor’s desk, would codify Title IX Obama Administration guidelines." https://t.co/BsB7OASbRg
— Know Your IX (@knowyourIX) October 6, 2017
Three states – California, Massachusetts and Texas – have pending legislation that would enshrine elements of the rescinded Obama administration guidance into statute, Bartlett told The College Fix in a phone interview last month. But he believes more will follow, since most legislatures are currently not in session.
California’s bill passed both chambers a day after a Rasmussen poll was released that found three in four Americans agree with Secretary DeVos’s statement that not only must “every survivor of sexual misconduct … be taken seriously,” but every accused student “must know that guilt is not predetermined.”
SAVE highlighted the poll, as well as “recommendations of numerous [state newspaper] editorial boards” that agreed with DeVos’s direction, as relevant to state lawmakers who had just passed the bill. “That’s a mandate” from voters, Bartlett told The Fix: “Legislators should pay attention to that.”
The bill was not among those signed into law by Democratic Gov. Jerry Brown Monday, however.
Gave up on persuading sponsor to modify bill
Brown’s signature is almost certain, Cynthia Garrett of Families Advocating for Campus Equality, another due process advocacy group, told The Fix in a phone interview.
FACE worked all summer to get certain due process protections inserted into the California bill but eventually gave up because it wasn’t getting anywhere, she said: The bill’s sponsor, Senator Hannah Beth Jackson, is “very rigid.”
Bartlett told The Fix that the 10th Amendment limited what the federal government could do to override state laws, but Garrett offered a different perspective. “That ship has sailed” regarding states rights with education, she said, arguing the federal Department of Education would not be hindered in overruling a California statute.
Mick Bullock, director of public affairs for the National Conference of State Legislatures, did not respond to requests from The Fix for comment.
IMAGE: Pete Souza/White House