In April, the US Department of Education's Office for Civil Rights (OCR) sent a "Dear Colleague" letter to colleges and schools. It clarified specific ways that sexual violence should be addressed under Title IX, a 1972 gender-equity law governing educational institutions that receive federal funds. Among other things, the letter addressed appropriate time frames for the resolution of cases and the need to offer the accuser and the accused equal rights. It also reiterated that if a hostile environment exists – for instance, a violent incident that negatively affects a student's learning experience – the school must take steps to support the victim and cure that environment.
"It has the potential to really change campus climates if universities take it as the wake-up call it's intended to be," Ms. Maatz says.
Some higher-education lawyers say the new letter is lengthy and burdensome to schools and should have taken the form of regulations subject to public comment.
One big concern is that the letter tells campuses they must use a "preponderance of the evidence" standard when weighing allegations. That means an official or disciplinary body needs to be just over 50 percent sure the incident occurred.
To require this of campuses that have been using a higher burden of proof is not only to micromanage them, but also to make it more likely that the falsely accused will be punished, says FIRE's Mr. Shibley.