As students across the country head back to school, officials at the Department of Education are drawing up new Title IX policies some activists say will harm survivors and push them off college campuses while their assaulters thrive.
The new rules would require colleges only to investigate formal complaints that come to administrators through the proper channels and which are said to have occurred on campus grounds, according to The New York Times, which obtained the documents outlining the proposal. The rules are also more forgiving of colleges accused of mishandling sexual assault cases, and "establish a higher legal standard to determine whether schools improperly addressed complaints," the Times reports.
In the biggest win for students accused of sexual assault and their advocates, the proposed guidelines would allow universities to determine their own standards of evidence and decide for themselves whether to provide students found responsible of sexual misconduct with the opportunity to appeal their cases.
Taken all together, activists fighting for sexual assault survivors say the guidelines do more to protect colleges and the accused than they do victims of sexual misconduct.
"The bottom line is, this guidance makes schools a lot less safe for survivors and will make schools safer places to commit sexual assault," Jess Davidson, the interim executive director at End Rape on Campus, tells Broadly. "It lets schools turn the other cheek and be blind to what's happening, if they wish."
Davidson says the number of victims who come forward is likely to decrease under the Department of Education's proposal, for several reasons. Because colleges will no longer have to investigate sexual assaults that happen off-campus, students who live in off-campus apartments, commute to campus, or attend parties in fraternity, sorority or any other off-campus houses may not have legitimate sexual assault complaints in the eyes of university officials. When some universities inevitably take advantage of the guidance to raise standards of evidence in sexual assault cases, many students will wonder what the point is of leveling an allegation a judiciary panel will see as nothing more than their word against their assailants', or two different understandings of a situation.
The majority of sexual assaults still go unreported, Davidson points out, a problem that would only get exacerbated under the Department of Education's proposed guidelines, making the scope of campus sexual assault unknowable.
"It makes it nearly impossible [to keep track of] what’s going on nationally when every school handles [sexual assault complaints] in a different way, and when there are huge differentiations in numbers [of reported assaults] or they’re trying to keep their numbers at a false low or false zero," Davison says.
"It's just galling to me that DeVos would … create an environment where survivors are intimidated out of coming forward," Sejal Singh, a policy and advocacy coordinator at Know Your IX, tells Broadly. "It could also allow schools to sweep sexual harassment under the rug by making the process of reporting sexual assault unnecessarily burdensome, opaque, complex, or traumatic."
The impending policy proposal is just the latest in the Department of Education's evolving stance on campus sexual assault, which has transformed under the leadership of Betsy DeVos.
In July 2017, DeVos kicked off her overhaul of Title IX policies with a series of "listening sessions" she held with multiple panels of students and educators, including one group of parents and students advocating for the accused.
“All their stories are important,” DeVos told reporters at the time, and, speaking specifically about students who believe themselves to have been wrongfully accused of assault, she added, “It was clear that their stories are not often told.”
Two months later, DeVos announced she would be rolling back an Obama-era guidance that made it easier for victims of sexual misconduct to argue their cases in campus judiciary hearings. Under the Obama administration's rules, alleged victims of sexual assault had to present Title IX panels with a "preponderance of evidence," meaning university officials sitting on the panel would only have to be more than 50 percent sure of a student's guilt. DeVos' new rules instead gave universities the option of using the Obama-era standards or raising the threshold for determining a student's guilt, making it more difficult for alleged victims to prove their cases by requiring them to present "clear and convincing evidence."
Sage Carson, an advocate from Know Your IX, says DeVos' most recent proposal would return college campuses to a time before President Barack Obama's administration provided schools with instructions, in 2011, for how to interpret Title IX, the federal civil rights law that dictates students can't be discriminated against based on sex.
Before Obama's 2011 guidance, which was released by the Office for Civil Rights, Carson says universities failed to uniformly enforce Title IX and sexual assault survivors often dropped out of school to avoid a harasser or rapist their schools refused to protect them from.
"The Department of Education and, specifically, the Office of Civil Rights is meant to ensure students have equal access to and are able to engage in education without experiencing violence," Carson says. "This proposed rule will let schools systematically push survivors out of education."
The only bright spot for sexual assault survivor advocates is that DeVos' new rules haven't gone into effect yet. After they're announced, the guidance will open up for a public comment period, during which time members of the public can give the Trump administration feedback on the policy.
"This is one action the Trump administration is considering that we can stop," Davidson says. "It's extremely important that anyone who's outraged by this, who supports #MeToo or #TimesUp, who knows or loves a survivor to engage and stand up for survivors in this process. We have an opportunity to top [DeVos' proposed policies]."