Betsy DeVos was right.
When it comes to sexual assault on college campuses, “we must do better,” she said in a speech earlier this month at George Mason University’s Antonin Scalia Law School.
But on Friday the Department of Education announced it would rescind the Obama administration’s 2011 guidelines on schools’ responsibilities under Title IX, a move advocates have long feared would discourage survivors from reporting assault and encourage schools to use unfair or ineffective investigation practices.
Schools do need to do a better job of responding to sexual assault allegations and protecting students. But DeVos’s approach — which has included taking advice from those who have questioned and targeted sexual assault survivors — is likely to do more harm than good.
This move was a long time coming
The crucial backstory to understanding today’s announcement is something that happened in 2011. It was then that the Obama administration’s education department sent a “Dear Colleague” letter that told colleges, universities, and primary and secondary schools that they have a legal responsibility under Title IX to respond promptly and fairly to allegations of sexual assault, and sets forth guidelines for how to handle these allegations. (You can read more about the policy change from Vox’s Ella Nilsen here.)
But survivors of sexual assault and their advocates have long feared what would happen when DeVos took the reins. In her confirmation hearings, DeVos would not commit to keeping the protections outlined in that 2011 letter in place.
In July, DeVos held a series of meetings to discuss Title IX. She met with groups representing survivors of sexual assault, but tellingly, she also met with the groups Families Advocating for Campus Equality (FACE) and Stop Abusive and Violent Environments (SAVE), which advocate for the rights of people accused of sexual assault, and the National Coalition for Men (NCFM), a men’s rights group.
Men’s rights groups have long tried to paint sexual assault and domestic violence victims as the true perpetrators. The president of the National Coalition for Men, Harry Crouch, said in a 2014 interview with Pacific Standard that Ray Rice, the football player whose assault of his then-girlfriend was captured on video, had been scapegoated: “If she hadn't aggravated him, she wouldn't have been hit.” At the time, one chapter of the coalition maintained a website with names and photographs of women who had accused men of rape (falsely, the site claimed), which many viewed as an effort to silence other survivors.
By inviting such groups to the table, DeVos and her department have long been signaling that they are willing to hollow out Title IX protections, and to take advice on the issue from people who may not have survivors’ best interests at heart.
Assault survivors need help — but the “Dear Colleague” letter isn’t the problem
Given DeVos’s history, today’s move isn’t a total surprise. In her speech at George Mason, she listed a number of situations in which she argued that “the failed system” put in place by the Obama administration had resulted in inequities either for survivors or for students accused of sexual assault. And she argued that “overreach” by schools and “the heavy hand of Washington” had ruined the lives of survivors and the accused alike.
Advocates agree that many schools are not living up to their responsibilities when it comes to sexual assault. “Study after study shows that one in five college women and one in 20 college men are sexually assaulted each year,” Fatima Goss Graves, the president of the National Women’s Law Center, wrote in a July letter to DeVos. “Examples abound of complaints that schools failed to properly respond to reports of sexual violence.”
Title IX “hasn't had its desired effect,” said Kaelyn Vitale, a George Mason student who has been active in anti-sexual assault campaigns. But in her view, the problem is lack of awareness, not overreach. “Most students don't even know that Title IX includes sexual violence protections,” she said. When she conducted a survey of 250 fellow students to see if they knew the resources available to them under Title IX, only 2.1 percent knew the correct answers.
In fact, for many survivors and their advocates, the problem isn’t the 2011 letter — it’s that schools aren’t going far enough to follow the guidelines. The letter includes clear procedural recommendations, which, if enacted, would have prevented many of the situations DeVos cited in her speech, said Alyssa Peterson, the policy and advocacy coordinator of the group Know Your IX. “For me, the issue is implementation,” she explained. “If the department was really serious, they would hold schools accountable when they fail survivors and accused students.”
Nor is it necessary to meet with men’s rights groups in order to understand issues facing accused students. In 2015, Know Your IX released a list of recommendations for due process for both survivors and accused students, including the right to review the available evidence and be advised by an advocate of their choice. “We want these procedural protections to be strong for both parties,” Peterson said.
What does today’s announcement mean?
In her speech at George Mason, DeVos announced that the Education Department would begin a process of notice and comment with the goal of revising the 2011 guidelines. It appeared, however, that the guidelines would remain in effect during this process. Now the department has rescinded the 2011 guidelines, as Politico reports, and put in place an interim guide until the notice and comment process is finished.
The interim guide differs from the 2011 Dear Colleague letter in several key ways. Perhaps most notably, it rescinds the requirement that schools use a “preponderance of evidence” standard to adjudicate sexual assault cases, and instead allows schools to use a “clear and convincing” evidence standard, which puts a greater burden on accusers. This is a change that critics of the 2011 guidelines have been requesting for some time, and one many advocates say is unfair to survivors.
The interim guide also allows schools to deny survivors the ability to appeal, and lifts the time limit for completing an investigation. Without a time limit, investigations might drag on for years, as they sometimes did before the 2011 guidelines were in place, Peterson said. In some cases, she said, survivors dropped out of school because their investigations went on for so long.
Even before today’s announcement, the education department had sent strong signals that enforcing the 2011 letter wasn’t a priority. The department announced this summer that it would no longer require investigators to collect data on schools’ past behavior as part of civil rights investigations. This indicates to schools that the department will be less thorough in looking into whether they are following the guidelines or not. “Now it’s going to be much harder to understand how the schools have behaved over time,” Peterson said.
By announcing a period of public comment without a clear timeline or goal in her speech at George Mason — she did not make clear whether the outcome of the comment period would be a new guidance document, new regulations, or something else — DeVos risked leaving students in limbo, wondering whether and for how long their rights will be protected. Today’s announcement of an interim guide to be followed by new guidance at a later date does nothing to help matters.
DeVos’s speech also sent a message to survivors that they can’t count on justice under a Trump administration. Elizabeth Vana, who graduated from George Mason in May, used to give PowerPoint presentations about Title IX to her fellow students. Before DeVos’s speech, she said any rollback of the 2011 guidelines would be a slap in the face to sexual assault survivors, discouraging them from reporting assault. Removing the guidelines would “create even more vagueness and a lack of guidance in an area in which people are already hesitant to act,” she said.
Still, advocates stand ready to help survivors fight for their rights in an uncertain time. Know Your IX plans to work with students to hold university presidents accountable for responding fairy to sexual assault. “Our focus is going to be on the campus level and making sure students have the tools that they need to organize,” Peterson said.
And students remain committed to the fight. Vitale has been discussing needed improvements to George Mason’s Title IX policies with university administrators, and says they’ve been receptive. Meanwhile, she wants everyone at the university to understand how common sexual assault really is. “If you believe you don't know anyone [who’s been sexually assaulted], it's because you have not presented yourself as an ally to those who need you most,” Vitale said.