The U.S. Department of Education on Friday issued new guidance for universities investigating sexual misconduct on campus. The guidance creates more protections for falsely accused students and allows schools to increase the standard of evidence used during investigations.
Schools will have the option to raise the bar for determining wrongdoing by using a “clear and convincing” standard when adjudicating cases, rather than just “preponderance of evidence."
This will mean investigators would need to meet a standard closer to a criminal court proceeding, where evidence “beyond a reasonable doubt” is used to convict criminals.
The department’s guidance on Friday withdrew an Obama-era directive that required schools to more aggressively investigate these cases under Title IX, a federal statute best known for enforcing gender equity in sports.
An ASU spokesperson said the University is reviewing the guidance but has not yet made a decision about which standard of evidence it will use during the transition.
Schools are expected to follow this new directive while the department seeks public input for a lasting policy change.
"This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly," secretary Betsy DeVos said in a statement Friday. "Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes."
The directive is the first official rule change by the department; DeVos initially announced her intent to reform some aspects of the department’s policy during a speech Sept. 7.
Read more: DeVos announces reform of sexual assault investigation system
At the time, an ASU statement said the University would not waver "in its commitment to maintaining a safe educational environment free of discrimination for all students."
ASU President Michael Crow also discussed DeVos’ initial announcement in a meeting with The State Press on Wednesday, two days before the department released its official letter to schools.
“I think any process can be improved, and we have an opportunity for individuals who have been accused of misconduct to be represented,” Crow said. “We have a process of review and a process of appeal.”
The ASU spokesperson deferred to Crow’s comments for this story.
Since the 2011 directive from the Obama administration, the U.S. Department of Education’s Office for Civil Rights has investigated how universities treat cases of campus sexual assault.
The Office for Civil Rights confirmed earlier this month that it has three open investigations into ASU. One began in 2012 and the other two were opened in the fall of 2016.
Many of these investigations examine potential mishandling of cases by the University, but it is unclear what specific events led to the cases involving ASU.
A senior department official said the Office for Civil Rights will begin evaluating ongoing cases based on their "merit."
"Ongoing investigations will be evaluated, each on their own merit," the department official said. "And, if there are situations where OCR finds a school only in violation of the 2011 guidance that’s now been withdrawn, that investigation would be re-evaluated."
The number of student sexual misconduct cases on campus has more than doubled in the past three years, which University officials say is a positive change due to an increase in reporting.
ASU investigated 90 cases of sexual misconduct in the 2016-17 school year, according to data released by the University. There were 35 students found responsible and 55 found not responsible.
At ASU, student misconduct investigations are run by the Dean of Students Office and can result in suspension, expulsion or degree revocation, according to ASU policies.
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