Concerned about campus rape, Democrats ask Trump not to rescind rules


Current rules clarify the evidence standard that colleges should use in judging sexual assault cases.

Washington Sen. Patty Murray (D), strides into the Senate chamber as lawmakers gather for a procedural vote on legislation to renew jobless benefits for the long-term unemployed. CREDIT: AP/J. Scott Applewhite

On in a letter sent on Thursday, two Democratic senators asked President-elect Donald Trump not to reverse U.S. Department of Education rules relating to campus sexual assault.

Sen. Bob Casey (D-PA) and Sen. Patty Murray (D-WA) say they are worried that the Trump administration could rescind a 2011 Dear Colleague letter providing guidance on how universities should handle sexual assault complaints, BuzzFeed reported.

The letter clarified that colleges and universities should use the “preponderance of the evidence” standard. According to this standard, the disciplinary panel would make a decision based on which party’s evidence has greater weight, rather than needing “clear and convincing evidence” to prove someone is guilty. The first standard is used in civil cases, while the second standard is used in criminal cases.

Murray and Casey said that Department of Education’s letter merely clarified a longstanding policy that dates back to at least 1995 and was supported by the George W. Bush administration.

“The preponderance of the evidence standard is well established for violations of civil rights laws and civil court proceedings, and we believe this is the correct and appropriate standard to use,” Casey and Murray wrote.

The senators’ letter mirrors what law professors supporting the guidance have argued for years: that the standard was used way before the department issued its letter, and that universities follow the same convention in complaints of racial discrimination on campus.

It would be discriminatory to treat sexual harassment and assault issues differently than other civil rights complaints, according to a 2016 paper a 2016 paper co-signed by dozens of law professors. They also argued that the different standards make sense because the harshest punishment a college can inflict on an accused perpetrator is expulsion, which is rare, while someone accused of sexual assault in a criminal proceeding could face prison time.

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Casey and Murray have good reason to be concerned, since conservatives have been outspoken in their opposition to the rule for years. Last year, Sen. James Lankford (R-OK) argued that the Department of Education letter made a new law instead of interpreting existing law. During a Higher Education Act reauthorization hearing in 2014, Sen. Lamar Alexander (R-TN) called the guidance an “edict” and told Catherine E. Lhamon, the assistant secretary of education for civil rights, “We make the law. You don’t make the law.”

In addition to the opposition from conservative lawmakers, the president-elect has been accused of sexual assault multiple times and bragged about sexual assault on tape. He also surrounds himself with men who have been accused of sexual harassment and domestic violence, including his top adviser Steve Bannon, former Fox News chairman Roger Ailes, and Labor Secretary nominee Andrew Puzder.

Even if Trump does not rescind the 2011 guidance on Title IX, experts say his administration could weaken the Education Department’s Office of Civil Rights and its enforcement abilities. In October, Trump surrogate Carl Paladino said the Office of Civil Rights, which investigates universities’ handling of sexual assault complaints, is unnecessary. Paladino called the office “self-perpetuating, absolute nonsense.”

Concerned about campus rape, Democrats ask Trump not to rescind rules was originally published in ThinkProgress on Medium, where people are continuing the conversation by highlighting and responding to this story.

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