Department of Education chooses assailants over survivors

Liza Anderson

Secretary of Education Betsy DeVos announced last week her intentions to roll back several Obama-era protections against sexual assault on college campuses. These changes embody a misguided attempt at gender equality that will directly harm survivors of sexual assault.  

Specifically, the Department took aim against a 2011 Dear Colleague letter distributed to universities by the Obama administration, which instituted a relaxed evidentiary standard for sexual assault cases within universities.

The Dear Colleague letter urged schools to adopt a “preponderance of the evidence” standard — meaning that schools must legally only be 50.1 percent, or mostly, sure that the accused is guilty in order to take disciplinary action, unlike in criminal courts, which require certainty of guilt beyond a reasonable doubt.

The intent behind this relaxation is clear. The overwhelming majority of sexual assaults are never tried in criminal courts, many because of insufficient evidence. It’s nearly impossible to successfully prosecute someone for rape — only .6 percent of rapists are incarcerated in the United States. The Dear Colleague letter attempted to remedy this dissonance in part by lessening the standard for conviction in non-criminal, disciplinary hearings and allowing more opportunities for justice outside of the legal system.

Many, DeVos apparently among them, balk at such blatantly unequal policy. Under the preponderance of the evidence standard, schools hold the accused to different standards than the justice system. Many feel that men (and they are overwhelmingly men) who are unfairly accused face life-altering consequences if they are expelled from a university for assault — even if they are never charged with a crime.

To avoid the tragedy of the falsely accused, DeVos seeks to reinstitute a higher standard of evidence for schools.

The “preponderance of the evidence” standard was established for a reason. The criminal justice system is naturally weighted against rape survivors, and the protections put in place on campuses allow schools greater freedom in assigning guilt and innocence.

The objection to these regulations originate with the idea that women often falsely report rape. Struck down again and again, this idea continues to propagate the discourse surrounding sexual assault. Setting aside the sexist framework that produces this mentality, the reality of false reporting is rare enough to make a falsely convicted rapist almost entirely fictitious. And yet, this is who DeVos seeks to protect.  

Right now, we have a federal government that prioritizes the accused over accusers, and the Department of Education — in a misguided attempt at establishing equal treatment — has tipped the scales once more in the favor of the accused. This decision, if successfully enacted, will have direct and disastrous consequences for college women around the country — including those at UT.

Nationwide, 94 percent of victims decline to report. Many do so because they do not believe that the justice system can help them — and they are right. At UT, only 32 percent of victims told anyone at all. Of those, 8 percent told a university or police official. That means only 2.5 percent of victims are disclosing to someone with disciplinary authority.

The University of Texas maintains a preponderance of the evidence standard for rape cases, and it is unclear if the school will retain that standard if the Department of Education changes course. But the message sent to survivors, at UT and around the country, by raising the burden of proof would once more illustrate where our priorities lie — and they’re not with the survivors.

Loosening the standard of evidence enables schools to act when they are confident in someone’s guilt but lack the evidence to convince a court of law. And yes, it disenfranchises the accused. But that disenfranchisement — combined with the marginal likelihood of a false accusation — is incalculably outweighed by the benefits to survivors.

Liza is a Plan II and history sophomore from Houston.