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Colleges are just ignoring Betsy DeVos' rollback of campus rape protections

It’s a win for anti-rape activists.

by Katie Van Syckle
Feb 12 2018, 1:45pm

AP Photo/Alex Brandon

On a fall night in 2016, a young woman left the library at University of Wisconsin-Madison and walked home, joined by a fellow student she'd recently met.

His name was Alec Cook. He was a 20-year-old junior at the time, and his scruffy dirty-blond hair and angular cheeks were infamous on campus.

The woman said Cook invited her back to his apartment. Before agreeing to join him, she said she made it clear she didn’t want to have sex. But, when they got inside, she said Cook took off all her clothes, and despite her pleas to stop, raped her, according to the criminal complaint.

The woman reported what happened to the police, and the news spread around campus. A few days later, police arrested Cook for sexual assault.

What happened next would shake the UW-Madison campus for years to come: Eleven more women came forward to say Cook had sexually assaulted them, describing a series of violent encounters. Investigators discovered Cook's diary, where he listed the women he’d pursued. Police eventually charged Cook with 23 counts including sexual assault, stalking, and strangulation, and UW-Madison put him on emergency suspension, and later expelled him.

Cook claimed the encounters were consensual or didn’t happen. He pleaded not guilty to all the criminal charges. He also insisted he had a right to stay on campus and appealed his expulsion. His lawyers said UW-Madison failed to provide a “fair and impartial hearing” and were overzealous in disciplining Cook. They said the political climate favored alleged victims over the people they accused.

“If you’re accused of something on a university campus that relates to sexual harassment, you’re done — you’re not going to win,” Cook’s attorney Chris Van Wagner said at a September hearing in his criminal case.

As the #MeToo movement brings down high-profile men like Harvey Weinstein and Matt Lauer who are accused of sexually harassing and assaulting women in the workplace, the Cook case is a reminder of a similar conversation that is still taking place on college campuses. The debate there also centers on definitions of sexual assault and how an institution should decide “guilt” when allegations arise, as well as what penalties are appropriate and fair. But on campuses it’s already been going on long enough to provoke a backlash — and now a fresh round of reckoning.

Meghan Downey, 22, a recent graduate from the College of William & Mary, reacts after Education Secretary Betsy DeVos spoke about proposed changes to Title IX, in September. (AP Photo/Jacquelyn Martin)

Cook’s lawyer’s argument, for example, has become increasingly common on one end of the campus rape debate. Critics of college sexual assault policies, including men’s rights activists, say that in universities’ rush to respond to reports of widespread sexual violence on campus — and to atone for past mishandling of these cases — they have overstepped their authority to punish accused students.

They found a champion for this idea in Education Secretary Betsy DeVos, who, now a year into her role, has taken major steps to reverse the survivor-centered policies put in place by her predecessor. Her reinterpretation of Title IX, the education sex equity law, scrambled the alliances: For years, survivors' advocates asked the Education Department to pressure schools to treat survivors better under Title IX. Now, these same advocates are asking schools to stand against the Education Department to make sure DeVos doesn’t dismantle it.

Read: Betsy DeVos wants new rules on campus rape

And it appears a good number of schools are doing so. At least 25 major colleges and university systems have publicly announced they'll keep Obama-era Title IX rules on sexual assault in effect. They include UW-Madison, the University of California, Stanford, Yale, the University of Michigan, Johns Hopkins, Amherst, the University of Oregon, the University of Denver, Washington University St. Louis, Wake Forest University, Missouri State, Swarthmore, George Washington University, Rutgers, and CalState Northridge.

New York lawyer Andrew Miltenberg, who represents students accused of sexual assault, believes the trend extends much further. In his experience, the majority of universities are maintaining the Obama-era rules.

“I don’t know one school that's following the Trump administration guidance,” Miltenberg said. “Some schools made an affirmative statement in support of Title IX. But there are a lot of schools that aren’t making an affirmative public statement but are doing it the way they always did.”

“In what I consider a political statement, I have even noticed some schools are doubling down," he added. "If it were possible, being more aggressive in the way they are handling these cases.”

The debate over Title IX

With thousands of reports of sexual assault at American colleges every year and a 205 percent increase in those reports since 2001, survivor advocates say universities have a responsibility to keep students safe. Because criminal cases can take years to resolve, they argue schools must step up to discipline offenders.

About six years ago, students across the country started coming forward to report their personal experiences with sexual violence on campus and their frustrations with how universities handled these reports. Schools have been accused of blaming victims who report complaints, ignoring these complaints entirely, and covering them up. Students argued their rights under Title IX, a law that guarantees all students the opportunity to an education free of discrimination, were being violated.

Watch: Betsy DeVos thinks Title IX officers have more power than they do

Typically, schools direct students reporting sexual assault to a campus security official. A campus administrator then investigates the merits of the case and students go before a disciplinary committee. This group listens to all sides, reviews available evidence, and makes a decision. Each institution has a different investigative model and hearing process.

The Obama administration made a commitment to eradicating sexual violence on campus and in 2011 released a “Dear Colleague Letter” guiding disciplinary practices under Title IX. More than 400 investigations were opened by the federal government examining how schools responded to students.

But advocates for the accused felt the pendulum had swung too far. Some young men and their parents argued accused students were not getting a fair hearing. At the same time, men who say they’ve been falsely accused have started to sue their universities. They believed schools capriciously expelled students when complaints of sexual violence arose. DeVos generally agreed.

On Sept. 22, she reversed the Obama-era guidance and released her own revised "Interim Guidance." Schools were no longer required to handle sexual violence cases within 60 days. To determine a student’s guilt, the Education Department advised schools to use a standard of “clear and convincing” evidence where the Obama administration had permitted a “preponderance” of evidence. The guidance also allowed schools to offer mediation, where an accuser and the accused could meet to discuss the charge.

A group of survivors of sexual violence and their supporters gather to protest proposed changes to Title IX in September. (AP Photo/Jacquelyn Martin)

DeVos, a billionaire philanthropist and major Republican donor, argued she was rebalancing the scales. Survivor rights advocates say the changes could make it harder to hold perpetrators responsible. In yet another legal turn, several of these groups are now suing the Education Department claiming the new guidance discriminates against accusers. They say there needs to be a rule forcing schools to address cases like Alec Cook’s within at least 60 days to keep students safe. (Cook lost his appeal to UW-Madison and was officially expelled in June 2017.)

Schools respond

Multiple people handling Title IX issues UW-Madison said the school is honoring Obama-era guidelines. The school’s chancellor, Rebecca Blank, released a statement after DeVos’ announcement last fall saying nothing would change at UW-Madison: “No student on our campus should have to deal with sexual assault. We have worked hard to develop a set of policies and practices that serve our students well and we do not plan to change them.”

UW-Madison wouldn't comment on the record for this story. But students confirmed they haven't seen the policies change.

“I feel solid about how they are handling things,” said Janie Felton, who chairs PAVE, a local campus group working with survivors of sexual violence. She said that in addition to providing resources on sexual assault, UW-Madison also wants students to know about resources available for survivors of intimate partner violence. “I think they are thinking about things now that go further than the Obama-era guidance,” she said.

The University of California system also stood up to the Department of Education. In a letter in September, Title IX office coordinator Kathleen Salvaty wrote: “I want to reiterate that UC's systemwide policies and procedures on sexual violence and sexual harassment remain in full effect.”

State Democrats went so far as to propose a new law that would codify the Obama-era regulations, with support from the UC system’s president. (It was later vetoed by Gov. Jerry Brown, who said existing laws were strong enough.)

Many schools maintaining the Obama-era guidelines went through Title IX investigations with his Education Department and faced fines and directives to change their policies. As a result, they’ve dedicated significant resources to address this issue on campus. Schools have overhauled first-year sexual education, implemented bystander training initiatives, and hired more Title IX coordinators.

Sage Carson of Know Your IX, a nonprofit that advocates for survivors of campus sexual violence, believes schools have already amended their policies and don’t see good reason to do so again. “They know firsthand why these things are so important,” she said, “And why they shouldn't shift back to old policies and old procedures that were harmful to survivors.”

Students keep watch

Stakeholders on both sides said schools are responding to DeVos’ announcement because of pressure from students. Know Your IX organized a letter-writing campaign calling on schools to clarify their positions, and student leaders set up meetings with campus administrators. (Most schools said they plan to revisit their policies once the Department of Education releases permanent guidance.)

University of Michigan student body president Anushka Sarkar said she called on the university president to make a statement about whether the school planned to follow DeVos’ guidance. She said she prepared for a fight and armed herself with 100 comments from students encouraging him to uphold the Obama-era guidance. But within an hour, she said, the administration had sent her a draft of a statement in support of the Obama-era policies. “Policy- and procedure-wise, nothing has changed,” Sarkar said.

Miltenberg thinks the national conversation around sexual harassment is putting pressure on schools. “I can’t help but to imagine that with the events of the last months, and all the various celebrities and high-profile businessmen that have come under fire, there is going to be some rationalization on campus that we need to protect the campus community,” he said.

Technically, schools that fail to comply with DeVos’ guidance could be subject to a review from the Department of Education. The department wouldn’t comment on what could happen to schools that are ignoring its guidance.

But as a practical matter, schools aren’t risking much, said Laura Dunn, a lawyer who represents students bringing Title IX cases against their schools. She thinks the law favors the Obama-era regulations.

“I don't think the department can do much about it, quite frankly,” Dunn said. “Legally this little interim guidance is the weakest of all the possible arguments.”

Alec Cook appears with his attorneys in Dane County Circuit Court after being charged with multiple counts of sexual assault. (John Hart/Wisconsin State Journal via AP)

At the University of Wisconsin, students said the chancellor’s announcement made them feel safer. More than a quarter of undergraduate women there have experienced sexual violence on campus, according to the school’s 2015 Campus Climate Survey, and there have been four Title IX investigations at the school since 2015, before DeVos’ tenure. Recently, there were three separate criminal cases in which men were accused of raping female students.

“It was surprising but also encouraging to hear straight from the chancellor that she doesn't want anything to change, and if she does, she wants it to move forward — not what we would consider backwards,” said Jacob Gardner, a senior at UW-Madison and a survivor of sexual violence.

He added: “Obviously there is a balancing, but for the most part the chancellor is on board with the idea that survivors and safety come first.”

“So far, I’ve seen them walk the walk, and I think I’m pretty attentive in making sure they continue to walk it. But I find it hard to put trust in institutions that haven’t already served folks in the ways they deserve,” Felton, the campus advocate, said. “And I am watching what the university chooses to do closely.”

A judge has scheduled Alec Cook’s trial for early this year. Felton said she’s relieved the University of Wisconsin expelled him from campus.

“It makes me think about what kind of response there would have been if we had not had Title IX in place, not pushed so hard for the ‘It’s On Us Campaign,’ and all of the different resources we have,” Felton said. “And that is a scary thought.”

Katie Van Syckle is the night editor for The Cut and writes frequently about gender-based violence, sexual harassment, and campus sexual assault.

Cover: Education Secretary Betsy DeVos speaks with the media after a series of listening sessions about campus sexual violence, Thursday, July 13, 2017, in Washington. (AP Photo/Alex Brandon)