WASHINGTON – Education Secretary Betsy DeVos on Thursday overturned an Obama administration directive on campus sexual assault that may have long-ranging implications for the more than 300,000 college and graduate students in Maryland.
“The era of rule by letter is over,” said DeVos, refering to the 2011 guidelines set in place by President Barack Obama governing cases of sexual misconduct under a 1972 law known as Title IX.
Title IX prohibits discrimination based on sex in educational institutions receiving federal aid and described sexual harassment and violence as forms of discrimination.
Obama’s 2011 “Dear Colleague” letter set out new obligations that the Department of Education would enforce involving sexual assaults at colleges and universities. Although the letter was not enforced as a law, colleges have followed it.
Critics of the letter say that the guidelines have been used to unfairly demonize anyone accused of sexual violence without evidence. Supporters say the guidelines make it easier for survivors of sexual assault to report their experiences without fear of backlash.
While a new framework is still in development, DeVos made clear that the Department of Education would roll back much of the earlier guidance.
University of Maryland spokeswoman Katie Lawson said the school remained committed to “a campus free of sexual violence.”
“The university will advocate for the safety of our students as we await the public review period announced today by the Department of Education,” she said.
The Maryland Higher Education Commission declined to comment on the matter when contacted, saying it was too early to assess the impact of the announcement.
AFT President Randi Weingarten, a sexual assault survivor, accused DeVos of siding with “those who want to roll back the clock.”
“DeVos is right that we need systemic reform, but it’s this country’s ingrained campus rape culture that needs changing, not the law that challenges it,” Weingarten said in a statement. AFT, known as the American Federation of Teachers, represents 1.7 million primary and secondary school teachers, college professors and staff, government employees and healthcare workers.
Calling DeVos’s move “disgraceful” in a tweet, Sen. Chris Van Hollen, D-Md., stated that the priorities of her agency would be better focused on “fighting against for-profit college shams.”
The YWCA USA tweeted that “survivors deserve an administration that stands with them.”
Under the Obama administration guidelines, schools were told to use the lowest standard of proof, called “preponderance of the evidence,” in prosecuting sexual assault cases.
In an address at George Mason University’s Antonin Scalia Law School, DeVos said colleges must raise the burden of proof in order to protect the rights of both victims and those that they accuse because “the system established by the prior administration has failed too many students.”
“Any perceived offense can become a full-blown Title IX investigation, but if everything is harassment, then nothing is harassment,” said DeVos, a statement which drew criticism for equating the harm done to falsely accused students with the suffering of assault survivors.
“Washington has insisted that schools step into roles that go beyond the mission of these institutions,” said DeVos. “This doesn’t mean schools don’t have a role. They do. But we should also draw on medical professionals, counselors, clergy, and law enforcement for their expertise.”
DeVos consistently returned to the theme that schools must be mindful of all the rights of all students both victims and accused students, saying that the current system provided no justice to either party and that educational institutions were often too quick to punish students through school tribunals based on flimsy evidence.
“Every survivor of sexual misconduct must be taken seriously,” said DeVos, adding that those accused of sexual misconduct must also not feel like they have been judged guilty without a fair chance to defend themselves.
DeVos’ proposed changes were praised by Robert Shibley, executive director at the Foundation for Individual Rights in Education, a nonprofit group that aims to defend individual rights at colleges and universities including “freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience.”
“Certainly as a civil libertarian you know it’s very obvious that it kicked of an effort by the department to redefine Title IX enforcement in a way that made it clear that due process was going to be in some cases totally ignored in favor of attempts to fight sexual assault on campus,” said Shibley.
While DeVos said the system can improve to become more “effective and fair,” some advocacy groups believe that these new guidelines will only help the accused.
Washington Sen. Patty Murray, the top Democrat on the Senate Health, Education, Labor and Pensions Committee, blasted DeVos, saying she was continuing “a pattern of undermining survivors’ rights, once again showing a clear lack of understanding or empathy for the millions of students who have experienced sexual violence on campus.”
“Let’s be clear: Secretary DeVos just made an open invitation to colleges to once again sweep this national epidemic under the rug, which could discourage women and men on campuses across the country from reporting sexual assault and deprive survivors of the justice they deserve,” Murray said.
“We know that no system is perfect, but we absolutely disagree that what (DeVos) is trying to do is make the system more fair,” said Annie E. Clark, executive director of End Rape on Campus, a national nonprofit organization involved in organizing student survivors and families who protested outside of DeVos’s speech.
“Survivors and advocacy groups were not a part of this announcement or meeting – in fact we were not even allowed in the room,” said Clark. “It’s a veiled insult. This is a blatant attack on the civil rights of survivors.”
High school and university students and their families were part of the crowd gathered outside to share their stories around issues of sexual violence and upholding Title IX, said Clark.
“We were told by reporters and others in the announcement with DeVos that they could hear us chanting outside,” said Clark. “So as she was talking about listening to survivors, you had this very clear picture that survivors were not being allowed in.”
“Survivors can’t learn when their rapists sit behind them in math class, or live down the hall of their dorm, especially without accommodations and support from their schools,” said Advocates for Youth in a press release. “But too often, schools don’t respect survivors’ rights, provide help, or investigate their reports.”
Know Your IX, a project of Advocates for Youth that works directly with students, was one of several groups protesting.
“Today, Secretary DeVos sent the message to student and survivors across the country that the Department of Education doesn’t have their back,” the group said in a statement. “DeVos and the Trump Administration have given us every indication their goal isn’t equality, but helping abusers and rapists avoid accountability.”
One of Devos’ main points was that the accused don’t get due process because colleges want to help appease the victim.
“The notion that schools must diminish due process to better serve the victim only creates more victims,” DeVos said. “The rights of one person can never be paramount to the rights of another.”
When asked whether he believed the changes DeVos proposes will lead to an increase in campus sexual assault, Shibley responded “I don’t believe there’s very much of a risk that all of a sudden people who are engaging in sexual misconduct on campus will go scot free.”
The specifics of a new process for handling sexual assault on campuses are yet to come.
“We will launch a transparent notice and comment process to incorporate the insights of all parties in developing a better way,” the secretary said. “We will seek public feedback and combine institutional knowledge, professional expertise and the experiences of students to replace the current approach with a workable, effective and fair system.”