Title IX guidance around sexual assault on college campuses appears to be in for an update, according to remarks from Education Secretary Betsy DeVos.
In a meeting with the media on Thursday, the secretary acknowledged both sides of what has become a partisan issue, referencing the struggles of sexual assault survivors to make their voices heard while also emphasizing that the due process rights of the accused must be protected.
Education Secretary Betsy DeVos
“No student should be the victim of sexual assault,” DeVos said, reading from prepared remarks. “No student should feel unsafe. No student should feel that there isn’t a way to seek justice, and no student should feel that the scales of justice are tipped against him or her.”
Earlier on Thursday, DeVos and other ED officials met with sexual assault victims, due process advocates and university leaders in listening sessions at the department that were closed to the press. The secretary characterized the listening sessions as part of an ongoing “conversation” that the department intended to continue with survivors, the accused and campus leaders.
“Today was a time to listen,” she said.
DeVos declined to reveal specific policy changes ED might make to Title IX and the Office for Civil Rights’ guidance to colleges and universities on sexual assault, but said that the department intends to review evidentiary standards and due process as they relate to adjudicating sexual assault cases, as well as a “lack of public input.”
“Today’s summit made it clear to me that there’s work to be done,” DeVos said. “This issue is hurting too many students, so we’ll get to work to figure out the best way to solve this problem, to stop and reduce sexual harassment and assault while respecting due process and the rule of law.”
Under Title IX, schools have a clear obligation to provide an environment that is free of gender-based discrimination, meaning that they have to provide an environment that is free of sex discrimination, sexual harassment and sexual assault, according to Naomi R. Shatz, a Boston-based attorney who attended the third listening session of the day. Shatz represents high school, college and graduate students who are involved in disciplinary proceedings regarding claims of sexual assault and harassment.
“Unless the federal law disappears and we decide that sex-based discrimination is okay in education — which hopefully no one would ever think to propose — this is something the schools have to deal with,” Shatz said. “They can’t bury their heads in the sand. Even if the department withdraws its guidance, the schools are still obligated to address this, and they should be addressing this. This is a civil rights issue that affects their students.”
On Thursday, DeVos said that Congress should also play a role involved in clarifying Title IX.
“This Department is not going to make laws from this Department,” DeVos said. “It’s Congress’ role to make laws, and so I think it’s high time for Congress to look at a rule that was passed in 1972.”
In 2011, ED’s Office for Civil Rights issued a “Dear Colleague” guidance letter that put pressure on universities to investigate claims of sexual assault more stringently. The guidance, although not a law, nevertheless carried heavy weight. Institutions were threatened with the loss of federal funding for non-compliance with the guidance set forth in the letter.
While advocates of the Dear Colleague letter argued that it was an important step forward in better protecting victims, others said that it flouted the due process rights of the accused, while also burdening institutions with financial and procedural challenges.
The 2011 Dear Colleague letter also required schools to use a lower standard of proof — or “preponderance of evidence” — in determining sexual assault cases. At the time the letter was released, most schools were already using a “preponderance of evidence” in their hearings, but critics point out that in criminal proceedings, the standard of evidence must be “beyond reasonable doubt.”
Lowering the standard of proof means that students are being denied due process, Susan Kruth, senior program officer for legal and public advocacy at the Foundation for Individual Rights in Education (FIRE), said in a phone interview on Thursday. “A heightened standard of proof is just a really basic way that schools can help ensure that if there’s a guilty finding, it’s actually accurate,” Kruth said.
In fact, FIRE’s official stance is that colleges and universities should not be adjudicating issues of sexual assault at all, Kruth added. “We believe that law enforcement and the courts are really much better equipped both to help fact-finders in the case reach the truth and also to punish real perpetrators,” she said.
Earlier in the day, organizations representing sexual assault survivors and members of Congress protested outside of the department, calling on DeVos to maintain the 2011 guidance and other advances made under the Obama administration.
They took issue with DeVos’ decision to meet with groups concerned with the due process rights of those accused of sexual assault on Thursday. Two of the groups represented, Stop Abusive and Violent Environments (SAVE) Services and National Coalition for Men (NCFM) Carolinas, are particularly contentious.
The Southern Poverty Law Center counts SAVE among a number of misogynistic organizations with an online presence dedicated to disparaging women. “Although some of the sites make an attempt at civility and try to back their arguments with facts, they are almost all thick with misogynistic attacks that can be astounding for the guttural hatred they express,” SPLC wrote.
NCFM Carolinas is a men’s rights organization, part of a larger umbrella group headed by Harry Crouch. On its website, NCFM Carolinas argues that misandry “is running rampant in both secondary and postsecondary educational institutions today,” contributing to a “rapid decline” in educational attainment among men.
Remarks from Candice Jackson, the acting assistant secretary for civil rights at ED, in a Wednesday New York Times article also elicited criticism from rape survivor advocates. Jackson said that the overwhelming majority of sexual assault investigations do not reveal “that these accused students overrode the will of a young woman.”
“Rather, the accusations – 90 percent of them – 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 decided that our last sleeping together was not quite right,’” Jackson said.
Jackson heads the Office for Civil Rights within the Education Department, which tracks Title IX complaints. In response to immediate backlash in response to her comments, Jackson apologized in a statement on Wednesday night. “What I said was flippant, and I am sorry,” Jackson said.
On Thursday, DeVos said that the department would take claims of sexual assault seriously.
“We can’t go back to the days when allegations were swept under the rug,” DeVoss said. “And I acknowledge there was a time when women were essentially dismissed. That is not acceptable.”
Staff writer Catherine Morris can be reached at firstname.lastname@example.org.