Dear Colleague (Please Help Keep The) Letter (Enacted)

U.S. Secretary of Education Betsy DeVos speaking at the 2017 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. Photo by Gage Skidmore via Wikimedia Commons/ CC by 2.0

Trigger warning: sexual assault

At this point in Trump’s administration the “Dear Colleague Letter” is a piece of legislation that is pertinent to college students and one that DeVos adamantly opposes, much to the dismay of thousands of young survivors. Introduced in 2011 during the Obama administration, the “Dear Colleague Letter” was an attempt to improve the application of Title IX in college sexual assault cases. Former Vice President Joe Biden in particular recognized the tremendous shortcomings of the Title IX offices, which lacked both accountability and punishment for perpetrators, as well as adequate support and resources for survivors. The guidelines delineated in the “Dear Colleague Letter” were an attempt to bring justice to the survivors of sexual assault and ensure that sufficient resources on campus were easily accessible for survivors.

The “Dear Colleague Letter” creates a universal system of having a preponderance of evidence standard, strict timeframes, less cross-examination, and right to appeal in the college courts. The preponderance of evidence standard deems a defendant guilty if there is more than a 50% likelihood that they committed the crime. Under the Obama administration guidelines, Title IX offices on college campuses have 60 business days to investigate a case, including the appeals process. In addition, there is no cross-examination for either party, to avoid possibly triggering the survivor. Lastly, both parties have the right to appeal if they are not pleased with the original decision. Those who support these standards applaud its efforts to create a safer and fairer process for the survivors, but others critique it for being unjust and unfair for the defendant.

In cases of sexual assault, it is almost always a “one word against another” circumstance. In most cases, there are very few pieces of concrete evidence which makes it almost impossible to prove something “beyond a reasonable doubt.” To mandate a “beyond a reasonable doubt” standard, which opponents of the letter support, is not just unreasonable, it is harmful. Implementing such a standard would result in decreased reporting of sexual assault incidents because the low conviction rates discourage survivors. Thus, while the “beyond a reasonable doubt” measure would be put in place as an effort to increase accountability for perpetrators of sexual assault, it ultimately has the opposite effect: allowing them to roam free and failing to shed light on the severity of the college campus sexual assault epidemic.

Opponents of the “Dear Colleague Letter” guidelines argue that “preponderance of evidence” is too low a standard for these serious cases. However, the school courts using this standard can only punish within their jurisdiction of the school. Thus, the biggest punishment they can administer is suspension or expulsion from their institution; they cannot call for jail time for the perpetrator. The “preponderance of evidence” standard promoted by the “Dear Colleague Letter” is reasonable for college campus sexual assault cases because of the amount of evidence typically available and the severity of punishment the colleges can administer.  

The 60 investigation window delineated in the “Dear Colleague Letter” ensures that the sexual assault cases reported to the Title IX offices are examined in a timely manner. Currently, there is a severe lack of seriousness surrounding these sexual assault cases, and survivors often feel that their cases are brushed to the side. Some will argue that these time limits restrict the Title IX offices’ ability to do a thorough job of investigating the cases brought before them, but it is easy to extend these deadlines. Thus, the timeframes are lenient, and any complaint about them is unfounded. Without the time frames, sexual assault cases will continue to pile up in back closets without any light ever being shone on them. When little to no action is taken on these cases, survivors of sexual assault will continue to feel the burden and pain of no one listening to their calls for help and justice.

“Due process” is the big buzz term for the debate on the “Dear Colleague Letter.” Proponents of the letter say due process is available for both sides, whereas opponents argue defendants are completely stripped of their due process rights. At most colleges across the country, assistance is offered to both parties involved in the case, thus ensuring components of due process for all involved. At UCLA, for example, Student Legal Services provides these services. Furthermore, if either side is displeased with the initial decision then they can appeal the decision. This is where those against the letter speak out. They assert that this allows for double jeopardy for the defendant if the accuser appeals the decision. However, the constitutional protection against double jeopardy can be ignored in these cases because campus tribunals are not courts of law. Once again, opponents to the letter proclaim an argument that is misinformed and incorrect.

Betsy DeVos, seeing only half of these arguments and listening to half of the people involved in these cases, decided to overturn the “Dear Colleague Letter” guidelines. She explained that it is a “broken” system that warrants improvement. Yes, that may be true, it does need improvement for no system is ever perfect. But did DeVos provide America’s schools with a new and improved system for dealing with the very serious and problematic epidemic of sexual assault to replace the old system? No. DeVos has stated that a new set of rules will be enacted after a public comment period — one that will probably be months long. Meanwhile, thousands of students across the country are left with no universal system to ensure easy access to a fair trial. Now it depends on one’s geographical location whether the old standards put forth by the “Dear Colleague Letter” will be upheld. DeVos has done nothing thus far but dismantle the system implemented by the Obama administration and leave thousands of survivors of sexual assault across the country with unimaginable stress, worry, and fear.