Education Secretary Betsy DeVos said that existing federal guidelines on campus sexual assault would be replaced with procedures that would respect the rights of both the accuser and the accused.
“This conversation may be uncomfortable, but we must have it,” DeVos said in an address at the George Mason University Antonin Scalia School of Law. “It is our moral obligation to get this right.”
Education Secretary Betsy DeVos
DeVos announced on Thursday that the Department would initiate a public notice and comment period before issuing new regulation under Title IX, the federal law that bars discrimination in education on the basis of gender. Over recent months DeVos had signaled an interest in reviewing federal guidance on campus sexual violence, meeting with three groups in roundtable discussions in July. The groups represented survivors and advocates, campus leaders and lawyers, and controversially, groups representing the falsely accused.
“Let me be clear at the outset: acts of sexual misconduct are reprehensible, disgusting, and unacceptable,” DeVos said. “They are acts of cowardice and personal weakness, often thinly disguised as strength and power.
Subsequent to July’s meeting, victims of sexual assault and advocates worried that DeVos might be planning to rescind Obama-era guidance from ED’s Office for Civil Rights (OCR), which established the burden of proof schools used to determine the guilt of the accused, and also provided a framework for schools to follow as they investigate and adjudicate sexual assault allegations.
A department spokesperson confirmed that 2011 guidance would remain in place for now, but would eventually be replaced with a “workable system that is fair for all students.”
Colleges and universities are required under Title IX to ensure that students are protected from sexual harassment and violence while on campus. Obama-era guidance from the OCR, notably the 2011 Dear Colleague letter and subsequent guidance published in 2014, was an attempt on ED’s part to clarify the procedures schools should follow.
At the time it was rolled out, the guidance was viewed as a victory by advocates and sexual assault survivors. In part, the guidance put pressure on schools to investigate accusations of sexual assault more strenuously and also sought to clarify issues of consent.
“The real power in the [guidance letters] is their ability to outline the rights that we are given,” said Isabel Rooper, campus advocate at the University of Notre Dame for Know Your IX, a national advocacy group that supports survivors of sexual assault. “So for people who aren’t familiar with how a sexual violence case may work, they can turn to their Dear Colleague letter and look it up step by step.”
DeVos gave credit to the prior administration for elevating the conversation about campus sexual assault but stressed that, “good intentions alone are not enough.” According to DeVos, OCR’s guidance to schools is opaque at best, resulting in what she said are often referred to as “kangaroo courts.” The consequences of these systems can be devastating for all parties, DeVos said, both to those attempting to seek justice and those who find themselves wrongfully accused.
“Washington’s push to require schools to establish these quasi-legal structures to address sexual misconduct comes up short for far too many students,” she said.
Sexual assault survivors and advocates raised concerns about DeVos’ rhetoric throughout the speech, specifically pointing to the equivalence she appeared to draw between the experiences of sexual assault survivors and those wrongfully accused of sexual violence. “There were moments where I think she tried to show an understanding and sympathy for the plight of survivors, but the attention given to due process and the rights of the accused was very noticeable,” said Laura Dunn, executive director of SurvJustice, a national nonprofit dedicated to promoting justice for survivors of sexual assault and violence.
“Trying to signal that it’s an equal playing field for all parties when there’s supposed to be a commitment to survivors is actually tipping the scale in the wrong direction,” Dunn continued.
DeVos relayed several stories about conversations with both sexual assault survivors and those impacted by campus investigations gone awry. The secretary recalled speaking with the mother of a young man accused of sexual assault who shared her fears that he might take his own life, in despair that his future had been lost due to the stigma of a crime he did not commit.
“There is no way to avoid the devastating reality of campus sexual misconduct: lives have been lost,” DeVos said. “Lives of victims. And lives of the accused.”
Due process rights have been a major point of contention ever since the 2011 Dear Colleague letter was released, which mandated that schools use the preponderance of evidence standard. The letter required schools to use the lowest standard of proof over “clear and convincing evidence” when adjudicating allegations of sexual misconduct. Critics say that this tilts proceedings in favor of the accuser.
“One of the big issues with [using the preponderance of evidence standard] is that it was layered on top of systems that often already didn’t offer students a lot of procedural protections,” said Samantha Harris, vice president of policy research at the Foundation for Individual Rights in Education (FIRE).
FIRE is an advocacy group that promotes free speech and civil liberties on college campuses. The organization recently released a report ranking schools on the fairness of their disciplinary proceedings.
DeVos’ offer to take all stakeholders views into account in reframing regulation and guidance around campus sexual misconduct was an important step in reversing the sometimes “adversarial” rapport between schools and OCR, Harris said. “Just the fact that they’re opening this up for notice and comment is a really positive step because it means that they’re going to be hearing from all stakeholders and hopefully taking the input from all of those stakeholders very seriously,” Harris said.
Staff writer Catherine Morris can be reached at firstname.lastname@example.org.