Education Secretary Betsy DeVos says that she will review and potentially rewrite the rules on how universities should handle campus sexual assault, saying that current rules overly favor survivors while students accused of rape are cut a raw deal.
DeVos is taking aim at an Obama-era interpretation of Title IX, a 1972 law that prohibits sex-based discrimination in any federally funded education program. In 2011, in response to a number of high-profile campus assault cases, the Department of Education said that failure to quickly investigate campus sexual assaults would put universities in violation of Title IX, putting them at risk of losing federal funding. It investigated allegations of university misconduct through its Office of Civil Rights.
But DeVos said the directive caused school administrators to become overzealous in their pursuit of sexual assault claims and to unfairly punish students accused of rape.
“Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students,” DeVos said to students and faculty at George Mason University in Virginia on Thursday. “Through intimidation and coercion, the failed system has clearly pushed schools to overreach.”
The Obama-era directive came after campus activists brought increased scrutiny to colleges’ poor handling of rape on campus — hundreds of assault survivors recounted incidents where skeptical administrators dismissed their allegations or told them they were to blame. The new rules sought to hold universities accountable for protecting students and offered guidance on how to handle sexual misconduct claims.
One of the more controversial guidelines lowered the burden of proof — it said schools should approach sexual misconduct complaints with the assumption that the complainant was telling the truth. That left it up to the accused to prove that it didn’t happen.
DeVos said the new rules are unfair. She met with critics of the directive, including men’s rights groups, as well as survivors of sexual assault and school administrators in July.
“The sad reality is that Lady Justice is not blind on campuses today”
“With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today,” she said Thursday.
DeVos acknowledged the deluge of cases before the Education Department’s Office of Civil Rights involving students who say their schools did not handle sexual misconduct allegations appropriately.
Since 2011, the office has opened 435 investigations into colleges for potentially botching investigations into sexual violence (compared to just nine investigations in 2010). Of those, 75 cases have been resolved and 360 remain open.
But DeVos also highlighted the growing number of “lawsuits by students punished for sexual misconduct, who also believe their schools let them down,” suggesting the problems deserve equal attention. Accused students have filed more than 150 lawsuits since 2011 against universities in an effort to clear their names, according to the Washington Post. That’s compared to just 15 similar lawsuits in the previous two decades.
How exactly DeVos will rewrite the Obama directive is unclear, though she said the Education Department would consider the needs of students accused of rape in addition to survivors and school administrators.
“Justice demands humility, wisdom and prudence,” she said. “It requires a serious pursuit of truth.”
Campus sexual assault remains rampant. One 2015 survey conducted by the American Association of Universities found that nearly 12 percent of students reported experiencing nonconsensual sexual contact by physical force or threats of physical force while enrolled at school. And student survivors historically have seldom come forward. The Bureau of Justice Statistics found in 2013 that an estimated 80 percent of sexual assaults among female college students went unreported, compared to 67 percent of non-students.
False sexual assault allegations, by comparison, are rare. One widely-cited 2010 study (before the Obama-era directive) found that an estimated 2 to 10 percent of sexual assault allegations reported to a university police department were false.
Anti-violence activist say sexual assault survivors still face an uphill battle and hostile climate when they bring complaints to school administrators. Critics worry that rolling back the Obama guidance would have a chilling effect on survivors’ willingness to come forwards and report sexual assault. In July, 20 state attorneys general co-signed a letter to DeVos urging her to keep the Obama-era rules on Title IX. “Trust survivors of sexual assault by keeping these protections in place and putting student safety first,” they wrote.