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Trump rolls back Obama-era guidance on campus sexual assault

The Trump administration on Friday rolled back federal efforts to influence university investigations into sexual assaults, rescinding Obama-era guidelines that some felt provided too little protection to those accused of rape and other sex crimes on campus.

Secretary of Education Betsy DeVos announced the change weeks after saying that her department would review a policy implemented in 2011 that nudged schools toward a lower evidentiary standard when considering sexual assault clams.

Six schools in Maryland — including the Johns Hopkins University, the University of Maryland, Baltimore County and the University of Maryland, College Park — are among 258 nationwide with pending sexual violence investigations, underscoring the scope of a problem that has flummoxed education leaders and policymakers for years.

DeVos has repeatedly argued that the Obama administration’s guidance, while perhaps well intentioned, stacked investigations against the accused and created a confusing set of regulations for universities to follow.

The Obama guidance had threatened universities with a loss of federal funds if they did not comply.

"Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug,” DeVos said in a statement. “But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

Women's rights groups criticized the move Friday, saying it would discourage students from reporting sexual assaults. One in five female students is sexually assaulted at college, according to the Centers for Disease Control and Prevention and student surveys. But analysts believe that only a small number of those incidents are ever reported.

The new guidance “will have a devastating impact on students and schools,” said Fatima Goss Graves, president of the National Women's Law Center.

“This misguided directive is a huge step back to a time when sexual assault was a secret that was swept under the rug,” she said in a statement. “Hundreds of thousands of parents, students, alumnae, and school officials know what’s at risk and have strongly urged the department to keep the guidance in place. It’s reckless to ignore these voices.”

Whether the policy shift will have an impact at universities in Maryland is unclear.

The Obama-era guidance pushed universities to use a “preponderance of the evidence” standard when assessing and investigating a claim of sexual assault. DeVos' guidelines let colleges choose between that standard and a “clear and convincing evidence” standard, which is harder to meet.

The new guidance will be in place while the Department of Education gathers comments from interest groups and the public and writes more formal rules.

Hopkins, the University of Maryland, Baltimore County, the University of Maryland, College Park and other schools contacted by The Baltimore Sun all use the lower standard.

Johns Hopkins spokesman Dennis O'Shea said the school has a “robust and comprehensive policy on sexual misconduct, including sexual assault.”

O’Shea said the policy was revised most recently in 2015, after meetings with students, faculty and staff.

“We are following developments closely and remain fully committed to a policy and process that are thoughtful, supportive and responsive to the complexities of addressing sexual misconduct on college and university campuses,” he said. “We are dedicated to prompt, fair and effective resolution of complaints of sexual assault.”

A spokeswoman at the University of Maryland, College Park directed The Sun to a statement issued by President Wallace D. Loh this month. Loh said the university would “continue to comply with the existing laws and regulations administered by the U.S. Department of Education's Office of Civil Rights.”

A spokeswoman for the University of Maryland, Baltimore County declined to comment on the Trump administration decision.

A student who is sexually assaulted may report it to police or have it investigated by a university under a federal provision against sexual discrimination. Some students choose not to turn to law enforcement because police and the courts require higher standards of evidence to prosecute.

Students may also feel more comfortable after a trauma dealing with university investigators than with police.

Andrew Miltenberg, a New York lawyer who represents students accused of sexual assault, said Obama's standard ignored the presumption of innocence and put the burden on the accused to prove the assault did not happen.

He said the system proposed by DeVos is “a much more stringent standard and one that is less open to subjective interpretation.”

Several congressional Democrats criticized the decision. Rep. Elijah E. Cummings said the move would “take America backwards.”

“I'm afraid that this action sends the wrong message to our students — a message of unaccountability,” the Baltimore Democrat said. “The duty of protecting young women and men on college campuses now falls to Congress.”

Rep. Steny Hoyer of Southern Maryland said he is concerned that DeVos “appears to be taking steps that make it harder for victims to speak up.”

The Department of Education did not say how long the interim guidance will be in effect. Clare McCann, a higher education expert with the New America think tank, said it will likely take the department more than a year to finalize a new rule.

The Associated Press contributed to this report.

john.fritze@baltsun.com

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