Betsy DeVos Launches New Assault On Title IX

By Megan Rosenfeld, CAASE Policy Director

Last Friday, Education Secretary Betsy DeVos rescinded guidelines outlining how college campuses should respond to sexual assault, and put some interim guidelines in place.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.

Title IX is a promise not yet realized, but worth fighting for

By Kaethe Morris Hoffer, CAASE Executive Director

Since Title IX became law in 1972, girls and women in the United States have been entitled to receive education unencumbered by sex discrimination.  

More than four decades later, however, colleges, universities, and secondary schools too often lack policies and practices capable of making real the promises made by Title IX.  To this day, significant minorities of girls and women (as well as too many boys and men) experience sexual violation at the hands of classmates and teachers, only to then discover that the communities in which they are embedded are woefully unequipped to respond to them, or to the people (who are mostly male) whose acts of sexual intrusion throw worlds, and educations, into trauma and chaos.

The ways in which colleges and universities have long been incompetent at preventing or responding to sexual violation have overwhelmingly hurt women, and violated the promises of Title IX.  Having been so bad, for so long, at acknowledging or taking appropriate responsibility for the realities of sexual violation, it is predictable that certain schools will develop new policies and practices that are ham-fisted at best.  It is clear, in fact, that some schools have simply ping-ponged from being stupid and cruel in the way they treat victims of sexual assault, to being stupid and cruel in the way they treat men in their community against whom allegations of sexual violation are made.  This is not the outcome that feminist activists seek, and it is not a reason to jettison efforts to demand that schools and universities learn how to do better.

In the last few years young women activists have been spectacularly successful at increasing awareness regarding the epidemic levels of sexual violence inflicted on (mostly women) in campus settings, and there have been significant, positive developments across the country.  New, thriving conversations about the importance of affirmative consent, and the imperative of seeing that sexual assault is as much a “men’s issue” as it is a “women’s issue," have been critically bolstered by never-before-seen levels of enthusiastic support from male allies and the Federal Government’s Department of Education under former President Barack Obama.

Given President Trump’s apparent lack of concern for the sexual dignity of women, many in the anti-rape movement have been anxious about what steps would be taken by his administration regarding campus sexual assault, and last week Secretary of Education Betsy DeVos issued a stinging rebuke of efforts made by her predecessors.  At the same time, she announced that her Department will launch a notice-and-comment period regarding regulations, with the aim of ensuring that schools are better informed and guided, and have processes that better serve both victims and perpetrators. CAASE supports those aims, and we agree with Secretary DeVos on this point: the Department of Education can do a better job of helping institutions get it right.

We worry, however, that Secretary DeVos believes that false rape accusations are routinely (rather than very rarely) leveled against men.  There are no facts to support that claim, although it is an effective and powerful lie that plays a key role in silencing victims. We are also disturbed by the Secretary’s suggestion that rapes occur because of  individual “personal weakness,” and her failure to acknowledge the ways in which the violation of young women’s bodies is simultaneously normalized and ignored by our culture. We worry that the Department of Education will promote policies that undermine school efforts to rid their campuses of sexual violation.  

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.