DeVos sets the stage for debate over campus sexual assault guidelines

Last week a public comment period on Title IX guidelines established during the Obama era was announced by Secretary of Education Betsy DeVos. Her department plans to replace the previous administration's approach. 

Survivors of campus sexual assault and their advocates are worried.

In a speech last week, Secretary of Education Betsy DeVos announced a public comment period for the current Title IX guidelines on responding to campus reports of sexual violence – and subsequently confirmed that the intention is to replace the status quo. Since then, critics, including former Vice President Joe Biden, have been mobilizing their followers and penning opinion pieces.

What has them concerned is the future of rights afforded to survivors, which many felt were better protected by rules established in the Obama era. Now, they anticipate that survivors could lose out as Secretary DeVos gives more weight to the treatment of the accused, along with the prospect of major changes.

"I think there's a lot of confusion right now in terms of what exactly this is going to look like," says Carly Mee, a staff attorney for SurvJustice, a nonprofit that provides legal assistance to survivors in campus hearings. In the long debate ahead, Ms. Mee says, she expects to see "a lot of organizing, concerted notice and comment efforts," and potentially legal action.

In a preview of what the Education Department is likely to hear in the coming months, some observers have questioned the need for a wholesale overhaul – why not just better enforcement? they wonder – while others point out that legal experts have increasingly called for revisions to a system they say can impact due process and free speech, and isn't always effective for survivors. What lies ahead, observers note, is a contentious reform effort that will be neither quick nor easy.

"The process that they've committed themselves to is going to have some real bite," says R. Shep Melnick, professor of American politics at Boston College and author of the forthcoming book "The Transformation of Title IX: Regulating Gender Equality in Education." 

Activism already

In a phone call with more than 800 activists on Sept. 8, Mr. Biden – who personally helped announce the "Dear Colleague" directive in 2011 that established present guidelines – encouraged students to pressure their schools into maintaining current protections for survivors. In a Facebook post the previous day, Biden urged college students, parents, faculty, and alumni to "speak up."

Alyssa Peterson, a policy and advocacy coordinator for advocacy group Know Your IX, says she's not opposed, in theory, to a rethinking of the way colleges handle sexual assault. But in the context of the Trump administration, and particularly in light of controversies over comments President Trump has made about women, she's wary. She sees DeVos's use of terms such as "kangaroo court" in her speech as troubling. 

"I don't think this administration can be trusted to look out for survivors' interests," she says. "To me, [DeVos's] speech was primarily a signal to the men's rights activists that she hears them and is interested in weakening protections for survivors."

During an official visit to Denver on Wednesday, DeVos was asked by a reporter what she would say specifically to those who are worried. "We are focused on doing what's right for all students: survivors and everyone involved in the horrible case of sexual assaults," she said, according to a transcript from Chalkbeat. 

The current practices on campuses stem from a 2011 "Dear Colleague" letter that went to schools around the country from the Department of Education's Office of Civil Rights. That document reminded them of their legal responsibility to address sexual violence on campus under Title IX, the federal law established in 1972 that prohibits sex discrimination in education. The directive, which threatened to pull federal funding from institutions that did not take sufficient steps to combat sexual violence, clarified some common points of confusion for both students and schools and provided guidelines for the investigative process. 

In particular, schools were told to use a "preponderance of the evidence" standard. That means that school investigators needed to be just over 50 percent sure that an incident occurred. 

The push was praised by many survivors and advocates as a step toward holding perpetrators justly accountable for their actions. But DeVos and other critics argue that, faced with pressure from the federal government, some campuses have gone too far in their attempts to punish and prevent sexual misconduct. 

In her address last week, DeVos presented examples of the kind of problems she's heard about – for both survivors and those accused – including of a former member of the Navy who was suspended from school without ever knowing what the exact allegations against him were, other than that they involved sexual harassment. 

An argument for revision 

Some progress has been made recently with finding common ground between groups that represent the accused and those who represent survivors. But more constituencies are speaking about how to improve current practices.

Observers of all political stripes have voiced concerns about the denial of due process to the accused and threats to free speech and academic freedom on campus. High-profile critics include law professors at Harvard University and the University of Pennsylvania, as well as former American Civil Liberties Union president Nadine Strossen.

Particularly harmful, critics say, are the broad definitions of sexual harassment adopted by many universities in recent years. The American Association of University Professors, for example, in a 2016 report argued that these definitions pose a heightened risk to faculty working in the fields of gender and sexuality studies.

"Often schools have gone beyond the official guidelines because they've been under so much pressure from [Office of Civil Rights] investigators," says Professor Melnick, who has written on the need to rethink federal regulation of Title IX. "They've scared colleges so much that they bend way over backward."

DeVos also addressed this in her speech: "Through intimidation and coercion, the failed system has clearly pushed schools to overreach.”

Enforce, rather than replace

Supporters of the Obama-era guidance say that what's needed is heightened support and enforcement for colleges and universities tackling the problem of sexual violence.

With more than 5,000 institutions of higher education in the country, says Michele Landis Dauber, a professor of law at Stanford University and a longtime advocate for sexual assault survivors, it's inevitable that not every school will always interpret the guidelines in a way that is just and fair. 

"I think that schools need help, they need training, information, better guidance on how to implement the rules, and they need enforcement when they fall short," she says.  

Suggestions that campus investigations should more closely resemble full-blown criminal trials are neither "practical" nor "appropriate," as "the question of how much process is due is tied to ... whether the consequences they're facing are criminal in nature," she says.

For its part, the Department of Education says it will support schools moving forward. “The 2011 guidance will be replaced, and in the interim, the Department will make clear to schools how to fulfill their current obligations under Title IX. The Office for Civil Rights will work directly with schools to provide support and technical assistance," wrote Liz Hill, press secretary at the US Department of Education, in a statement to the Monitor.  

Possible challenges

Schools themselves and recent state legislation may pose a challenge for making changes. Convincing schools to roll back policies against a rising tide of student activism may be difficult, observers say, as survivors and advocates around the country rally to defend guidelines that they see as necessary to curbing the pervasive issue of sexual violence on campus. 

"Student organizers have been at the forefront of this movement and they're not backing down," says Ms. Mee of SurvJustice. "It's great to see them with the intention of holding their school accountable because ultimately, regardless of what happens with the guidance, schools can continue to hold themselves to those higher standards." 

Melnick adds that to truly make a difference on campuses, the government will need to convince colleges to modify their policies – "which means [the Department of Education has] to show that they're serious about getting a better balance, and not just undercutting what's been done before."

Before making significant changes, he says, the Education Department will have to respond to criticisms, explain themselves "in great detail," and undergo review by the courts. 

Also worth watching are states, such as New York and California, with laws "that to some extent mimic and exceed Obama-era requirements," says Peter Lake, a professor of law at Stetson University in Tampa, Fla.  

"What will happen to those systems if federal regulations contradict that in some way?" he wonders. "It seems we've got a federalism debate brewing."