“The campus justice system was and is broken,” said Robert Shibley, the executive director of the conservative-leaning Foundation for Individual Rights in Education. “With the end of this destructive policy, we finally have the opportunity to get it right.”
Ms. DeVos plans to enact new rules after a public comment period that department officials said could take at least several months, and in the meantime, colleges may choose to maintain the lower standard of proof. She did not provide any hints about whether the final rules would force schools to adopt the higher standard.
Some states followed the lead of the Obama administration and passed laws requiring colleges to use the lower standard. But the move on Friday suggests Ms. DeVos wants colleges to consider making the change if they are legally able, raising the possibility that different colleges will begin to evaluate sexual assault complaints in different ways.
Janet Napolitano, the president of the University of California system and a Homeland Security secretary in the Obama administration, said in a statement that the department’s announcement would “in effect weaken sexual violence protections, prompt confusion among campuses about how best to respond to reports of sexual violence and sexual harassment, and unravel the progress that so many schools have made.” (California is one of the states now requiring the lower standard.)
And Fatima Goss Graves, president of the National Women’s Law Center, an advocacy group for women’s rights, said Ms. DeVos’s announcement would have a “devastating” impact on students and schools.
“It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law and make campuses less safe,” she said in a statement.
Since many cases come down to one student’s word against another’s, and do not rise to the level of a police investigation, the evidentiary standard has become the main battleground in the nationwide fight over sexual behavior on campus.
The “preponderance” rule means colleges must find a student responsible if it is more likely than not that the student conducted a sexual act without the partner’s consent. A “clear and convincing” case means it is highly probable the misconduct occurred.
Even some liberal legal figures took issue with the Obama administration’s approach, arguing that no student should be punished unless the school…