The allegations that Brett Kavanaugh sexually assaulted women in high school and college stirred up arguments familiar to many who handle sexual misconduct cases on college campuses: What's the best way to adjudicate cases that lack eyewitness testimony, and that involve alcohol and hazy memories? In elevating Kavanaugh to the U.S. Supreme Court, a slim majority of the U.S. Senate concluded that the evidence against him was insufficient. On college campuses, however, that same evidence could be enough to expel a student.
On college campuses across the country, administrators, students and advocates have been debating two critical issues that also arose in the Kavanaugh saga: What's the proper burden of proof in sexual assault cases, and how should sexual assault be defined? Under the Obama administration, colleges were held accountable for investigating student cases and prosecuting them based on the "preponderance of evidence." In other words, if it seemed more than likely to have happened, the school needed to take action. But Education Secretary Betsy DeVos has been rolling back the Obama-era campus sexual misconduct policies, which are part of the federal Title IX law.
"This issue of Title IX is really the same issue that's at the heart of the confirmation battle over Brett Kavanaugh," says John Hechinger, a senior editor at Bloomberg and the author of "True Gentlemen: The Broken Pledge of America's Fraternities." He's covered campus sexual misconduct and the large role fraternities and fraternity culture have to do with the problem.
Most people are familiar with the Title IX law as the one that, in the 1970s, established equal rights to athletics on college campuses for women. But it also granted equal access to educational facilities for women and defined sexual harassment as discrimination.
In 2011 the Obama administration released guidelines it termed the "dear colleague letter," which expanded Title IX campus sexual misconduct policies and framed the fight against campus sexual violence as a fight against discrimination. Institutions that didn't take measures outlined in the letter would lose their federal funding. In framing sexual assault as a form of discrimination, the Obama administration set a new standard for prosecuting cases. The accused could be tried with a "preponderance of evidence," rather than the "clear and convincing evidence" needed in a criminal trial.
The changes were welcomed by many survivors and survivors advocates, who thought the new policies brought long overdue justice to the large number of women who have experienced sexual violence on college campuses. But to critics those standards infringed on the accused's due process rights.
Those critics include DeVos, who rescinded the dear colleague letter, and she's slated to announce a new plan to overhaul many of the Obama-era campus sexual misconduct policies. According to a copy of the proposed rules, obtained by The New York Times, the new policies will require, among other things, a greater burden of proof, recuse schools of investigating allegations of sexual misconduct that took place off campus or outside of their programs and adopt a new Supreme Court definition of sexual harassment: "Unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school's education program or activity."
Hechinger says many universities will probably not dismantle the systems they put in place in order to meet the stricter Obama campus sexual misconduct guidelines, but these new regulations will mean colleges have less of an obligation to investigate some allegations and to take their own corrective measures.
Hechinger says that colleges are "under a lot of pressure from parents and from activists to police sexual assault, but it's going to be a lot a lot more difficult to hold men accountable under these new standards."