U.S. Secretary of Education Betsy DeVos held listening sessions Thursday on the agency's directives to colleges and universities that may be precursors to rolling back the Obama administration's guidelines making it easier to punish sexual assaults on campus.
Campus rape has plagued higher education across the country. The University of Montana came under federal scrutiny in 2012 for its failure to respond to allegations of sexual assault. UM subsequently fired staff, changed policies, and reached a settlement with the U.S. Departments of Justice and Education.
However, one lawsuit that's part of a case that brought national attention to UM and Missoula is still tied up in court.
In that proceeding, investigative journalist Jon Krakauer sued the Commissioner of Higher Education for disciplinary records related to the decision to apparently reverse the expulsion of a star UM quarterback accused of rape.
In 2013, former UM Grizzlies quarterback Jordan Johnson was found not guilty of sexual intercourse without consent in Missoula County District Court.
However, multiple disciplinary proceedings on campus found that a student had committed sexual intercourse without consent, and former UM President Royce Engstrom agreed that the unidentified student accused of rape — at the same time and with identical facts as the case against Johnson — should be expelled, according to court records.
Best-selling author Krakauer, who wrote a book about the national problem of campus rape using UM and Missoula as a case study, sued the state to find out how the Commissioner's Office handled the situation.
"... Society has an interest in knowing how a publicly funded university deals with a star quarterback accused of rape, especially when it appears the commissioner reversed the University Court's finding that he committed an act of sexual intercourse without consent," said a court document
In September 2016, the Montana Supreme Court remanded the case for an "in camera" review of documents, instructing the lower to privately view records to determine which — if any — can be released to the public.
Thursday, Kevin McRae, spokesman for the Commissioner's Office, said the case has not yet been scheduled for action in the Helena judicial district.
Lawyer Mike Meloy, who represents Krakauer, said motions for review have been briefed and the parties are awaiting an order from Judge Mike Menahan on how the review will be conducted.
In court documents, Krakauer alleges the commissioner likely disregarded a 2011 mandate from the U.S. Department of Education to use a legal standard that meets the requirements of Title IX when investigating sexual violence on campus.
That standard required campuses to use a preponderance of the evidence, rather than the stricter clear and convincing standard of evidence, when evaluating allegations of sexual assault. At the time, the Obama administration said the guideline was a clarification of schools' exisiting responsibilities under Title IX.
The meetings DeVos held Thursday may be precursors to rolling back the 2011 departmental mandate. She met with both survivors of sexual violence and those who say they were falsely accused of sexual assault.
According to the Associated Press, DeVos said after the meetings that she does not believe that current enforcement requirements are appropriate.
"This is an issue we're not getting right," DeVos said.
In 2011, the department issued a letter that outlined the way schools must respond to allegations of sexual violence and harassment, noting that 20 percent of women and 6 percent of men will be victims of attempted or actual sexual assaults in college.
"Acts of sexual violence are vastly under-reported," stated a fact sheet outlining the position of the department in 2011. "Yet, data show that our nation's young students suffer from acts of sexual violence early ... ."
This week, the Education Department's assistant secretary for civil rights told the New York Times that 90 percent of rape accusations "fall into the category of, 'We were both drunk, we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right,'" according to news reports. Candice Jackson has since apologized for her "flippant" remarks.
In the 2011 letter, the department told campuses to use a specific standard for evaluating sexual assault allegations. Some schools were using a "clear and convincing" measure, or one that finds it is "highly probable" that a rape occurred, according to the letter. But the agency said civil rights issues require a different standard.
Schools should use a "preponderance of the evidence" standard, and evaluate whether the facts show it is more likely than not that sexual violence occurred, the letter said.
Advocates for sexual assault survivors worry that DeVos may issue a rollback. Other groups are pressing her to do so, and DeVos appears receptive to modifications.
The AP reported that a lawyer for a college football player who says he was falsely accused of sexual assault says DeVos sees federal rules on enforcement as unfair and in need of change.
Any proposal from the Department of Education likely would reignite debate in Montana, and particularly Missoula.
McRae, spokesman for the Commissioner's Office, said UM uses the "preponderance of the evidence" standard in its discrimination grievance procedures and the "clear and convincing evidence" standard in the student conduct code. He said the Commissioner's Office sees those standards as appropriate.
He did not expressly address whether the commissioner believes DeVos should change the standards. "The commissioner and the MUS (Montana University System) have not reached out to Secretary DeVos with any communications on this issue. We believe our current standards are appropriate at this time, and we believe we are within our authority to maintain them as the MUS sees fit."
Through Meloy, Krakauer said colleges and universities should "definitely" continue to use the preponderance of evidence standard for sexual assault allegations. In an email through his lawyer, the author said a campus disciplinary proceeding isn't a criminal trial, and it isn't supposed to resemble one.
"Title IX requires schools to respond to sexual assault as a violation of a student's civil rights, rather than a criminal offense," Krakauer said. "And the burden of proof applied to civil rights cases has always been a preponderance of the evidence.
"Indeed, the preponderance standard is the default in almost all civil actions, even those involving murder and other violent crimes."
In fact, Krakauer said the preponderance of the evidence has always been the standard when male students expelled for sexual violence sue schools under Title IX and allege reverse discrimination.
"It would be outrageous to allow men who claim they've been unfairly disciplined to win reverse discrimination claims using the preponderance standard, but require female accusers to prove they were victimized with a more stringent burden of proof.
"The preponderance standard simply gives equal weight to the credibility of the alleged rapist and the alleged victim," he said. "This makes campus proceedings a lot more likely to actually uncover the truth, achieve justice for rape survivors, and prevent sexual offenders from harming other students."
Through a spokesman, Montana Attorney General Tim Fox offered general support for addressing the problem of sexual assault, but did not take a position on whether the Department of Education should change its guidelines for campuses.
“Sexual assault must be taken seriously," said spokesman Eric Sell. "Attorney General Fox has made addressing sexual assault a top priority since taking office, and he is ready and eager to provide his offices’ expertise to the U.S. Department of Education to ensure that we continue to improve how we address sexual assault in Montana.”
Johnson will have the opportunity with his lawyer to argue against the release of his disciplinary records, according to an earlier interview with a retired Montana Supreme Court justice.