After Secretary of Education Betsy DeVos announced on Sept. 22 new rules will be enacted regarding sexual assault on college campuses, some rumors have been circulating around Colorado Mesa University that changes will be enacted on current policy. The alleged changes would be to move from the “preponderance of evidence standard” to the “clear and convincing evidence” standard. Vice President of Student Services John Marshall said that no changes are currently scheduled to take place.
“Based on what has come out from the Department of Education, they have given us interim guidance,” Marshall said.
The Department of Education has told colleges what they should do between the announcement in September and when final directives come out.
“Which is another way of saying don’t do anything,” Marshall said. Marshall stated that virtually every institution in the country, including CMU, will sit tight and watch what happens during the public comment and revision period.
CMU would not make policy changes mid-year with the exception of extraordinary circumstances, so there are no plans to change the current sexual assault policies that existed when the school year began.
“Our process is good. We have worked hard to get it in a place where it really balances rights of the victim and rights of the accused, and it supports and protects everybody involved and really focuses first and foremost on the right thing for students,” Marshall said. “And I don’t think the latest edict from Washington is going to change that.”
While CMU maintains what it hopes to be a fair approach for all involved, it waits on Washington to provide the new guidance. There is no clear time frame yet available for when new directives will be finalized. First, the public comment period must end and then decisions will be made and finalized based on that period.
“Let’s say it is seven to nine months, or even six months from now that they wrap up this public comment period where theoretically the public, stakeholders, advocacy groups all pitch in and say this is how it should look, then they have to go through the process of actually deciphering that, putting out a draft or just putting out whatever,” Marshall said. “There’s got to be a process of taking all that public comment and then publishing a final directive.”
Under U.S. President Barack Obama’s administration, campus sexual assault directives demanded the use of the “preponderance of evidence” standard regarding sexual assault cases. According to Marshall, that means deciding the accused individual is considered guilty if there is around 50 percent certainty.
“It’s what I consider a parent standard,” Marshall said. “Somebody broke the vase and it’s probably you.”
When the discussion involves expulsion and serious matters that can potentially follow a student the rest of their lives, law professors, legal scholars and lawyers have suggested that a higher standard of certainty ought to be applied. The “clear and convincing evidence” standard is being touted as appropriate replacement for the “preponderance of evidence” standard.
According to Marshall, the “clear and convincing evidence” standard means there is about 75 percent certainty of guilt.
“The clear and convincing standard is actually more appropriate when you have such a weighty issue where you are affecting somebody’s future and their reputation,” Marshall said. “I think you can make an argument for either standard, but the point is right now we’re not going to do anything while it’s in this stage of the game.”
While there are reasons to remain using the old standard or adopt a standard with a higher percentage of certainty, CMU is not going to act ahead of receiving direction from Washington. For now, the university has decided to wait and see how the issue plays out in the federal government.
