The Department of Education’s approach to handling allegations of sexual
misconduct under the Trump administration differ in controversial ways, and in
some not so controversial ways. One of the biggest differences is the change the
Obama administration had for proof which was the “preponderance of the evidence”.
This lower bar allows for claims of sexual assault to stand with not as much picking
through evidence to find the accused guilty. In cases where someone has been
assaulted, this approach was good because it made it much less likely someone
would get away with their conduct. Under the new administration, they allow the
school to decide to use a higher standard if they want but must do so consistently.
Uncontroversial is the accused now get written notice of allegations, and an
opportunity to review evidence. I like this approach because many people who are
accused of sexual assault are likely to deny it. So, for the innocent or the guilty if
they are able to look at what evidence is being brought against them they can better
prepare for their response. Additionally, this just seems fair; especially when people
who are reluctant to believe accusers are often declaring for proof.
A big change came in that colleges are only liable for incidents that occurred
with activities related to school, or on the college campus. Given that most students
live off campus, and many of the misconduct incidents or assaults occur off campus,
many students’ accusations will go unheard. I do not see the logic in this shift
unless they we were about schools being inundated with investigations. But even if
that is the case, it is a poor reason.
Additionally, the change that has received the bulk of the criticism is the
right of the accused parties’ to cross-examine the accusers. Because many people
who are victims do not want to have to relive the moment, the badgering of
questioning and people trying to discredit them is enough to discourage claims.
Consequently, many claims will likely not be brought.