“The era of ‘rule by letter’ is over,” her speech says, referencing the Obama-era Education Department’s infamous “Dear Colleague” letter, which fundamentally changed the way schools handle sexual misconduct issues. “Through intimidation and coercion, the failed system has clearly pushed schools to overreach.”
The Dear Colleague letter was released on April 4, 2011, by the Office for Civil Rights, an Education Department sub-agency charged with ensuring that federally funded schools comply with Title IX, which mandates equality between the sexes. The letter holds that sexual harassment and sexual violence are forms of gender inequality, and that it is thus the responsibility of colleges to vigorously investigate and adjudicate rape disputes rather than leaving such matters to the criminal justice system.
The new guidance encourages—and in some cases requires—university administrators to neglect the rights of accused students. It specifies, for instance, that colleges should use a “preponderance of the evidence” standard for determining guilt; officials need only be 51 percent sure an accusation is credible to expel an accused perpetrator. It also discourages officials from allowing students to cross-examine each other, because that might be too traumatizing for a survivor of sexual assault. Never mind that cross-examination is one of the best ways for an objective jury to determine who is telling the truth.