Last Friday, Education Secretary Betsy DeVos rescinded guidelines outlining how college campuses should respond to sexual assault, and put some interim guidelines in place. The new guidelines:
· Allow schools to replace a “preponderance of the evidence” standard (the standard used in nearly all civil court cases) with a more difficult-to-meet “clear and convincing” evidence standard.
· Allow schools to deny victim-survivors the right to appeal their cases, while maintaining a right of appeal for people who’ve been accused of rape.
· Allow schools to adopt practices that could leave victim-survivors feeling obligated to go through “mediation” with their rapists.
· Allow schools to adopt practices related to cross-examination which have been shown to discourage victims from reporting rape.
· Remove the requirement that forced schools to respond to complaints quickly. Now schools can draw investigations out for months or even years, without oversight from the Department of Education.
We are very troubled by these changes. The guidance issued under the Obama administration was imperfect, but the interim guidance is far beyond imperfect: it is patently designed to promote the re-installation of roadblocks that long stood between victims of rape and their right to education unencumbered by sexually discriminatory violation. We will take every opportunity to urge the Department of Education to move away from its current efforts, which appear bent on denying and minimizing the ways in which sexual violation disproportionately harms women in the United States, and which would undermine the adoption of reasonable policies by Universities wishing to stand with victim-survivors of sexual violence in their midst. The fight is not over.
At CAASE, we are thankful that under the leadership of Attorney General Lisa Madigan, the Illinois General Assembly directed that in Illinois colleges and universities, students have rights beyond what the federal government provides. The Preventing Sexual Violence in Higher Education Act codified into state law much of the Obama-era Title IX guidance, and, as is appropriate under state law, went further. In Illinois, colleges and universities must:
· Use a “preponderance of evidence” standard when adjudicating claims of sexual assault.
· Develop a comprehensive policy, including reporting procedures and university response guidelines.
· Designate a trained “confidential advisor” to consult with student victim-survivors on their legal, medical, and reporting options.
· Provide a short and clear written explanation of rights to any survivor that details reporting options, potential accommodations (changing class schedules or residence hall room assignments), and the complaint resolution procedure.
· Adopt an amnesty provision to encourage students to report sexual violence without fear of sanctions for certain conduct that violates a student code, such as underage drinking.
· Define consent to include, at a minimum, that a person cannot consent to sexual activity if they are unable to understand the nature of the activity or give knowing consent, such as when the person is unconscious, asleep, or incapacitated due to drugs or alcohol.
While the Preventing Sexual Violence in Higher Education Act includes the enormously valuable protections listed above and more, it did not duplicate all of the Obama-era guidance.
We must organize and demand schools maintain comprehensive sexual assault policies that do not coerce victims into mediation with their rapists, that allow victims to appeal erroneous decisions, and that provide a reasonable timeframe for adjudicating cases.
Know Your IX developed a comprehensive toolkit for how to respond to sexual assault on campus. Determine what your school’s policy is and whether it is adequate, build a coalition, and work with your school’s administrator to comply with both the previous Title IX guidance and the Preventing Sexual Violence in Higher Education Act.
Moving forward we have two missions: there is still time to convince the Department of Education to draft fair and comprehensive regulations that protect victims’ access to education. That process will be long and the impact will be felt for years. In the meantime, we can act now at our schools and universities to convince them to continue to use guidelines and processes that do not discriminate against victims.
We will not stand for any roll back of Title IX rights for survivors. We will continue to amplify the voices of the victims, students, and communities that support Title IX. We will continue to fight for the realization of the law’s promise: students are entitled to an education unencumbered by sex discrimination, harassment, and assault.