After barely surviving her confirmation battle and facing sporadic protests during visits to schools, Education Secretary Betsy DeVos could hardly have teed up a more fraught, emotional and divisive issue to launch her tenure: campus sexual assault.
Though almost no one is happy with the Obama administration’s efforts to prod colleges and universities to more aggressively combat and investigate sexual assault on campus, there is little agreement on how to make things better.
Alleged survivors, accused perpetrators and even school officials all complain that the current system isn’t working.
DeVos raised eyebrows with her outreach last month to students who say they have been falsely accused of assault. These students, mostly men, say the Obama rules have pushed schools to create a process that is stacked against them.
Campus administrators say the guidelines created unrealistic expectations, forcing them to effectively take sides even in cases where the facts are unclear, and to perform a prosecutorial role, often without proper training.
Even victims advocates say the current system has fallen short, leading some schools — eager to protect their reputations and avoid the mandatory reporting and investigatory process triggered by the rules — to discourage students from reporting sexual assaults.
Now there’s a virtual race to gain DeVos’ ear as she gathers information for what might be an overhaul of the Obama-era rules.
Obama released a series of guidelines in 2011 and 2014, detailing how colleges and universities should handle cases of sexual assault. Failure to comply with the rules — which provided an updated interpretation and enforcement of the anti-discrimination rule known as Title IX — may result in a review by the Education Department’s Office for Civil Rights and a loss of federal funding.
Although the guidance helped increase attention and resources devoted to the issue, victims groups say some problems persist, including difficulty in reaching a school’s Title IX coordinator, lack of proper notice or information regarding an investigation and sometimes a reluctance to confront the problem.
“[We] still see this knee-jerk reaction that there’s something wrong with the student who actually made the complaint,” said Fatima Goss Graves, president of the National Women’s Law Center.
She and others worry that DeVos may scale back the federal rules or make the complaint process more burdensome for accusers.
“The last thing we need is for DeVos and her point person for civil rights [Assistant Secretary Candice Jackson] to get out there and start saying things that imply you can come forward but you’re going to face a really big mountain trying to get anything done,” California Atty. Gen. Xavier Becerra said in an interview. He and 19 other attorneys general signed a letter in July urging DeVos to maintain the Obama-era guidelines.
“The shame that comes from being a victim and having nothing being done to the perpetrator would drive people back into the closet,” he said.
Jackson came under fire in July when she said in a New York Times article that 90% of accusations “fall into the category of ‘we were both drunk,’ we broke up.’” She later apologized for the statement, but victims advocacy groups say her remarks fueled concern that the department is not committed to protecting alleged survivors.
Their concerns with the current administration started early in DeVos’ tenure when she refused to guarantee she would maintain the current guidelines and signed off on rescinding Title IX protections for transgender students.
On the other hand, those who are accused of sexual assault say they are battling a system that seems to presume they are guilty. They complain they are often kept in the dark about what information an investigator has and are unsure who can assist them in defending themselves.
They are hopeful DeVos will raise the standard of evidence now used by school administrators from one that requires a “preponderance of evidence” — meaning it is more than 50% likely that sexual violence occurred — to something similar to “clear and convincing evidence.”
They also want to remove what some campus officials say is pressure to find someone responsible for the assault. The rules say a school should make a recommendation one way or the other within 60 days. That’s often difficult in cases in which even police can’t make a determination due to a lack of evidence and witnesses.
“Before the Office for Civil Rights got really ramped up on this issue, we were really precooked to make errors in the direction of no responsibility,” said Janet Halley, a Harvard University law professor who publicly criticized the school’s policy. “We needed to change. But now we’ve passed the midpoint where we’re trying to be fair to all students.”
In some ways, the department under DeVos has already relaxed the Obama rules. Jackson has announced that the department will no longer be required to automatically review three years of a school’s past data and filings on sexual assaults after it receives a complaint of mishandling a case.
Higher education officials said fear about such federal reviews has led to concerns about being labeled as a school that doesn’t take sexual assault seriously.
Many schools say they have been confused by the current guidance, according to Dana Scaduto, general counsel at Dickinson College in Pennsylvania.
She suggested that the government stop focusing on a “one size fits all” solution and recognize that “schools need to have the same responsibility for fairly and impartially resolving situations but that might look different on different campuses.”
Some argue that campus activism and pressure from students, who are largely credited with bringing attention to the issue under the Obama administration, will encourage colleges and universities to maintain current practices, regardless of what DeVos does.
Brett Sokolow, executive director of the Assn. of Title IX Administrators, which provides professional guidance to campuses, recommends schools “stay the course.”
“Title IX has a 45-year trajectory. During that time, it has waxed and waned,” he said. “This is a period where for four or eight years it’s going to wane somewhat in federal emphasis.”