Betsy DeVos’ plan to develop a “better” approach to campus sex assaults has stoked fears among activists and victims that the Trump administration is bent on weakening three-decades-old protections from gender-based discrimination in education.
In a speech last week at George Mason University, the Education Secretary criticized the previous administration’s directive mandating that universities take “immediate and appropriate action” to address cases of sexual violence, rather than waiting for cases to be adjudicated through the court system.
The so-called “Dear Colleague” letter issued by the Obama administration in 2011 was a response to concerns—supported by statistics—about high rates of assaults against women on campuses around the country, and the failure of the justice system to address them properly.
The directive said a “proactive” response by university administrators would be within the spirit of the protections provided under Title IX of the Education Amendments Act passed in 1972 prohibiting educational discrimination based on gender.
But according to DeVos, the directive has “burdened schools with increasingly elaborate and confusing guidelines that even lawyers find difficult to understand and navigate.” She said a decision on whether to formally rescind the directive would await a “notice and comment” period for views on both sides to be heard.
But many activists believe DeVos’ comments, such as her warning that the directive sets up a “kangaroo court” for men accused of assaults, suggest she has already made up her mind.
The secretary met with critics of the directive and supporters in separate meetings during a Title IX “summit” in July. Some of the attendees claimed DeVos exhibited dramatically different attitudes towards both groups.
“DeVos did not appear very affected or somber after meeting with us, even though the stories told were powerful and devastating,” one attendee at the meeting with sex assault survivors told The Crime Report. “She certainly did not appear as affected or somber as the men’s rights activists describe her being after their meeting.”
“It’s like DeVos had already made up her mind going in.”
But those who support revising or abandoning the Obama-era directive said they welcomed DeVos’ announcement.
“Schools don’t have access to forensics, they can’t put anyone under oath, they don’t have trained lawyers on each side, so it should surprise no one that there are tremendous injustices in both directions,” said Joe Cohn, policy director at the Foundation for Individual Rights for Education (FIRE), an organization that advocates for due process of students accused of rape or sexual assault.
“You cannot create a just world by replacing one injustice with a new injustice. We need to be thinking through ways we can encourage complainants to come forward, where they are treated with decency and respect, but due process isn’t thrown out either.”
According to the 2011 letter, university authorities must take “immediate and appropriate action” on any cases of sexual violence that are brought to their attention, and they do not have to forward the case to law enforcement.
The directive was intended to clarify Title IX provisions that require all federally funded educational institutions to comply with laws prohibiting sex discrimination, or risk losing their funding. Under Title IX, allegations of discrimination are investigated by the Justice Department’s Office of Civil Rights, which has already begun keeping a public list of schools subject to investigation, according to The Atlantic.
DeVos supporters have dubbed these “shame lists,” meant to pressure colleges into siding with the victim in order to avoid investigation.
Cohn argues that, although under the current system both the accused and accuser are allowed to have an advisor of choice present with them at a university hearing (which could be a lawyer), that person is prohibited from speaking or taking part in the process, making such advisors “no more useful than a stuffed animal for comfort.”
Cynthia Garrett, co-president of Families Advocating for Campus Equality (FACE), an organization created by mothers of sons accused of sexual misconduct, told TCR that DeVos appeared moved by the stories she heard at the meeting with critics last July.
“(She) listened so intently to each person’s story,” Garrett said. “She remembered the story, the names and the details. The room was silent. When we walked out of there, it was like a funeral procession.”
But advocates of greater protection for victims of sexual assaults on campus argued that DeVos showed she did not understand the depth of the problem.
“I think for DeVos and others to assume due process is granted in a criminal or civil setting more than at the university level is making an assumption without [a basis in] criminological theory,” said Kimberly Mehlman-Orozco, a criminologist at George Mason University.
“The whole system put in place is the trial, which the vast majority of cases never make it to: 95% of the cases are plea bargains.”
Orozco added that she would like to ask DeVos whether she understood the difficulties involved in the trial process, particularly in sexual assault cases.
“If you were familiar (with those difficulties),” she said she would ask DeVos, “How could you remove any types of avenues from these survivors?”
Survivors of sexual assaults worry that removing the directive will add to women’s fears of impunity for perpetrators of campus assaults.
Jessica Davidson, managing director at End Rape on Campus, a Washington, DC-based nonprofit, said “It’s important to note that mandatory police reporting is not a good thing for Title IX. Its simple: survivors don’t want to sit next to their rapist in math class anymore, and they don’t want to go to the police for that.”
Douglas Harms, a teacher advocating for reduced sexual assault at DePauw University, told TCR: “Studies show that the vast majority of campus sexual assaults are not reported to campus authorities, and even fewer are reported to the police; increasing the burden of proof (e.g., from preponderance of evidence to clear and convincing evidence) would, I believe, discourage even more survivors from pursuing justice.”
“Clearly DeVos and the Trump administration have no grip on the epidemic that is happening on campuses,” said one survivor who asked to remain anonymous. “Defending rapists through changing rhetoric is unacceptable, upsetting and invalidates victims’ experiences.
“More than 90% of sexual assaults/ rapes on campus go unreported—including mine—and that’s because the current rules don’t go far enough.”
But the administration’s skepticism about efforts to extend Title IX protections has also received support from law enforcement.
“Title IX can hamper a criminal investigation by alerting suspects to the allegations,” said prosecutor Tim Bookwalter of Putnam County, IN. “In any other case, we approach the suspect for an interview without telegraphing him the allegation in advance.”
According to Bookwalter, sex assault investigations on campus should be handled by law enforcement agencies, just as all such assaults are handled.
DeVos and her supporters argue that the risk to due process posed by investigations conducted by universities is too grave to ignore.
“One person denied due process is one too many,” DeVos said, arguing that universities use the lowest standard of proof when evaluating cases of sexual assault.
According to women’s advocacy groups, DeVos has not followed up with any survivors since the July meeting, despite promising them that this was “just the start” and this “would not be a one-time thing.”
Jessica Davidson argues that DeVos falsely portrays the problem of sexual assault as two equal sides.
“To say that assailants and survivors go through something equal is tremendously insulting to survivors of sexual assault,” she said. “Why would anyone equate violent rape and being kicked out of school? The problem is just not the same.”
Both sides seem to agree that the issue of sexual assault on college campuses is not one of men vs. women. Yet, can a system that has been biased for so long be re-created to ensure equality for both sides?
Christina Seung, former President of Code Teal, a student organization fighting against sexual assault, thinks it can’t.
“The system is already skewed to result in very few consequences for the accused,” she said in an interview. “I do not support weakening protection for sexual assault survivors under the guise of legal fairness.”
At the end of her speech at George Mason University, DeVos listed several options her administration was exploring. One of them was adapting standards in 2007 set by the American Bar Association for the legal defense of victims of sexual assault.
Meanwhile, as both sides lined up for the comment period, the future of federal policy towards sexual assault on college campuses is unclear. Survivors worry this may be the beginning of a systematic attempt to weaken anti-discrimination protections.
“I have never felt completely safe on my campus, even with our current Title IX policies,” another survivor told TCR.
“To know that DeVos plans to rescind regulations that many have fought for years to establish makes me fear for students, particularly those who enter college with knowledge of how frequent sexual assault happens.”
Megan Hadley is a TCR news intern. She welcomes comments from readers.