Rep. Mark Meadows, R-N.C.(Photo: Chip Somodevilla, Getty Images)
Incoming Freedom Caucus chairman Mark Meadows recommended that the Trump administration roll back 2011 campus sexual assault guidelines that “deny the often-innocent accused basic due process rights.”
The North Carolina congressman issued a report this month on 230 rules that should be targeted for repeal or change in the first 100 days of the Trump administration, then published an updated version last week with more than 70 additional rules.
One new entry is an April 2011 guidance document from the Department of Education’s Office of Civil Rights setting out standards for how universities should handle sexual harassment and sexual violence complaints.
Meadows’ updated report says the guidance “has pressured colleges to spend hundreds of millions of dollars and to create vast campus bureaucracies” to investigate sexual assault and date rape — “the incidence of which may be overstated.” The guidance “virtually dictates one-size-fits-all procedures which provide less protection to the accused,” the report claims, and denies the rights of “the often-innocent accused.”
Meadows' office did not respond to repeated requests for comment.
Sofie Karasek, director of education at End Rape on Campus, said Meadows' assertions are dubious at best. “There is a huge amount of evidence that campus sexual assault is a problem,” she said, and little evidence of false rape accusations. Karasek said, “The number of false rape accusations is between 2% and 8% — on par with the rate of false accusations for other crimes.”
As far as the suggestion that universities spend “hundreds of millions of dollars” on new bureaucracies to address sexual assault, Karasek said, “I think that’s a mischaracterization at best and just plain false at worst.” What is true, she said, is “there are certainly many schools that are using their resources to address this problem — they are using resources in order to keep their students safe and ensure they have equal access to education.”
Meadows is not alone in his concern about the Department of Education guidance. Last year, Mollie Benz Flounlacker, vice president of the Association of American Universities, told a Senate committee that the guidance created significant confusion among colleges. The guidance established the expectation that campuses would adjudicate sexual assault allegations based on the “preponderance of evidence” — a lower bar than the “beyond a reasonable doubt” standard that applies in criminal cases. The guidance was not developed with public input, and universities were confused about what it required, “but it took OCR more than three years to issue further clarification. In the interim, campuses were forced to intuit what OCR wanted them to do," Flounlacker said.
Though the guidance was not issued through a formal rulemaking process, it is treated as “compliance requirements under the law,” Flounlacker said. “It is essential that all stakeholders, including colleges and stakeholder groups, be allowed to comment on and inform policies.”
The AAU does not doubt the prevalence of sexual assault on campuses. The group published a survey of 27 campuses in 2015 that found nearly 25% of female undergraduates reported some form of sexual assault or sexual misconduct.
An advocacy group called the Foundation for Individual Rights in Education has argued for years that the Education Department guidance violates students' due process rights. By reducing the burden of proof for sexual assault cases, the guidance by definition reduced the amount of certainty needed to issue punishment, said legislative and policy director Joe Cohn. "It is uncontroversial that there are both people who get away with things that they have done and there are innocent people who are getting expelled," Cohn said. In response to the department's guidance, campuses are "actively reducing due process protections, which is increasing the margin of error."
Cohn said "it is perfectly appropriate to repeal" the 2011 guidance "as long as they really do go through the process of trying to view this from both sides" and adopt policies that protect the rights of both the accusers and the accused.
Meadows' report carries the logo of the House Freedom Caucus, but it is not an official Freedom Caucus report because the other members of the group have not voted to adopt it. Alyssa Farah, the caucus communication director, told USA TODAY last week, "While the Freedom Caucus strongly supports undoing President Obama’s harmful regulatory regime, the group did not assist in the drafting of this report and has not yet taken an official position in support of it."