WASHINGTON — When Maddie Orcutt came forward to report sexual misconduct by one of her fellow students at Middlebury College a few years ago, the process that followed was not easy.
“It was very hard,” Orcutt said in an interview last week. “It was very imperfect.”
However, she said, the guidance the Obama administration issued on the expectations for colleges in addressing campus sexual assault helped her decide to come forward. She felt supported, she said.
Now the Trump administration is redeveloping federal rules on campus sex assault and has already issued an interim set of guidelines loosening the requirements on colleges.
Orcutt, who graduated from Middlebury in 2016 and now lives in California, is concerned the changes could have a chilling effect on students coming forward to report assaults.
“It stinks that we’re going back to an era where colleges are setting their terms of engagement,” Orcutt said.
In September, Education Secretary Betsy DeVos announced that the department would review the federal guidance on campus sexual assault cases. The regulations grow out of Title IX, the 1972 law barring sex discrimination in any education program that receives federal money.
The guidelines issued in 2011, in a document known as the “Dear Colleague” letter, were celebrated by many for spotlighting campus sexual assault and establishing protections for people who report misconduct. But critics, including some high-ranking legal minds, felt the policy violated the rights of those accused.
One of the more controversial aspects was that colleges must set the standard of proof in a sexual assault proceeding at a “preponderance of the evidence” — meaning the evidence shows it is more likely than not that the accused committed the offense alleged.
The Education Department is at the beginning of the process of formally revising the rules, expected to take months. In the meantime, late last month the department issued new interim guidelines that relax several aspects of the Obama-era rules.
Among other changes, the interim guidelines allow schools to use a higher “clear and convincing evidence” standard of proof in proceedings.
A spokesperson for the Department of Education last week refused to comment about the situation, beyond referring to the new guidelines.
Some, including Sen. Bernie Sanders, I-Vt., decried the move away from the Obama-era guidelines and called for Congress to take action.
This is a disgrace and a disservice to everyone who has worked to address sexual violence. Congress must act to undo this terrible decision. https://t.co/OcuJez0Gff
— Bernie Sanders (@SenSanders) September 22, 2017
Others, including the Foundation for Individual Rights in Education, celebrated the change.
“The campus justice system was and is broken,” Robert Shibley, executive director of the group, said in a statement after the interim rules were released.
The foundation argues that the Obama-era guidance “eviscerated” the rights of students and faculty to due process because it used too low a standard of proof and discouraged cross-examination, among other issues.
“With the end of this destructive policy, we finally have the opportunity to get it right,” Shibley said.
Despite the pending changes at the federal level, officials with many Vermont colleges and universities said last week they intend to keep the processes they developed under the Obama administration in place for the time being.
“We plan to stay the course,” said Sue Ritter, compliance officer and Title IX coordinator at Middlebury College.
Ritter said the college will continue to use the “preponderance of the evidence” standard in sexual misconduct proceedings.
She said has some concerns that if the federal government were to require colleges to use a higher degree of proof, it could dissuade students from reporting incidents.
However, she said, it is possible the new rules will continue to allow colleges flexibility in deciding what standard to use.
“I’m trying not to get too concerned about it until we know more,” Ritter said.
The college would support some changes, she said, including relaxing the requirement to complete investigations within 60 days. It can be difficult to finish a thorough investigation within that time, especially when there are breaks in the semester and students may not be on campus.
The change in guidelines also may allow more opportunity for universities to explore alternative justice models in resolving accusations, she said.
However, in the meantime, Middlebury College will not adjust its procedures, according to Ritter.
“For us, not much will change unless and until new regulations dictate otherwise,” she said.
Catherine Welch, who serves as the Title IX coordinator at Saint Michael’s College, said the Colchester school also plans to stick with the current process unless changes to federal guidelines require otherwise.
“We’ve built a process that we really trust,” Welch said.
Saint Michael’s College has been focusing more on improving the handling of sexual assault allegations over the last decade, she said, and found the Obama-era guidelines helped the college develop its program for addressing the issue.
“Our current efforts will stand as they are, and we’ll continue to move forward as we have been doing,” Welch said.
Officials at Norwich University and the University of Vermont also said they will stick to their current policies for now and don’t have immediate plans for changes.
Orcutt said she is glad her alma mater and other Vermont colleges are planning to maintain their policies developed under the more stringent Obama-era rules.
However, she said, before the Obama guidance there were issues with inconsistency of campus sex assault policy and underreporting of misconduct cases. The flexibility under the DeVos guidelines may allow that trend to re-emerge, she said.
“We’re going to go back to that era where schools have every incentive to push these issues under the rug,” Orcutt said.
She worries the federal changes giving colleges more flexibility will mean students who have experienced sexual assault by another member of the school community will be less likely to come forward because there will be less clarity about what they can expect.
“If when I was sexually assaulted I would have been living under Secretary DeVos’ guidelines … I don’t think I would have come forward because I don’t think they paint a clear enough picture of what you’re going through,” Orcutt said.
