Advocates for sexual assault survivors are pushing back against Education Secretary Betsy DeVos’ decision last week to rescind Obama-era guidance that clarified the protections sexual assault survivors should be granted under Title IX, the federal civil rights law that prevents sex and gender discrimination in education.
Know Your IX, an organization that educates people on their rights under Title IX, is encouraging students to put pressure on their universities not to change their policies, arguing that the interim guidance proposed by the Education Department would dissuade survivors from coming forward and tilt the scales in favor of the accused.
The 2011 and 2014 sexual assault guidance clarified expectations for universities, such as what timeframe qualifies as a prompt investigation and which standard should be used in investigations of complaints.
Under the department’s interim guidance, which could take up to 18 months to be finalized, the suggested 60-day timeframe for prompt investigations would be replaced with “no fixed time frame.” Colleges can decide to pursue an informal resolution, like mediation, forcing survivors to “work things out” with the accused. In disciplinary proceedings, colleges have the option of using one of two burden of proof standards when deciding whether someone committed sexual misconduct — a preponderance of the evidence standard, which means that it’s more likely than not that the accused is responsible for sexual assault, or a clear and convincing evidence standard, which means evidence must be presented that will lead people to believe there is a high probability that the victim was sexually assaulted. Colleges can also implement a process that allows only the accused to appeal a decision.
“Some university presidents have already come out and said they won’t be changing policies and that they will uphold current policies and preponderance of evidence standard, that they will not allow mediation on campus, and stick to the timeline they are currently using,” Sage Carson, project manager of Know Your IX, told ThinkProgress.
“Schools were supposed to be using preponderance of the evidence and some schools were not, but the 2011 guidance just clarified that they should have been using preponderance of the evidence standard,” Carson added. “It is the appropriate standard to be using with Title IX, since it’s based on gender discrimination with gender violence. It’s also the standard used in most civil cases.”
Bush-era policies also emphasized the preponderance of the evidence standard. In 2004, the Education Department’s Office of Civil Rights (OCR) investigated Georgetown University after receiving a discrimination complaint. In its letter to Georgetown, OCR wrote that complaints should be handled under the preponderance of evidence standard:
In addition, under each of the procedures, complaints of sexual harassment were resolved using a clear and convincing evidence standard, a higher standard than the preponderance of the evidence standard, which is the appropriate standard under Title IX for sexual discrimination complaints, including those alleging sexual harassment. This raised concerns that it is more difficult than it should be for the [University] to hold students and employees responsible for acts of sexual harassment.
Sexual assault is a form of sex discrimination and is investigated as such. With its interim guidance, the department is essentially changing how a type of discrimination case is handled. Michele Landis Dauber, a Stanford University law professor, said the department’s new guidance could call into question how other kinds of complaints around disability and racial discrimination are handled.
“In any harassment context — sexual violence, racial harassment, sexual identity harassment, gender identity harassment, and disability harassment — all of these are legally adjudicated under same basic set of rules, and the requirement that everything be equal between students applies in all of these other areas of harassment,” Landis Dauber said. “We have no idea what the impact of this rule would be on other forms of harassment.”
Landis Dauber and Carson agree that allowing colleges to do mediation, which often involves the alleged perpetrator of sexual assault to cross-examine the person bringing the complaint, re-traumatizes people who have been sexually assaulted and dissuades people from coming forward.
“I think a lot of people don’t understand that students don’t always have lawyers. Sometimes they’re not allowed, sometimes they can’t afford them, and that means that possibly someone’s rapist is cross-examining them,” Carson said.
Carson, herself, dropped her complaint at her university largely because of fears around mediation.
“When I went through a reporting process, I was unaware that I was going to be directly cross-examined by my rapist,” Carson said. “So, I started dropping my case because I was so scared of what that would be like. Just hearing his voice made me have panic attacks. So, this ultimately means that less people will come forward, which makes for a less safe campus.”
Because of the decisions to ignore the trauma of survivors and limit their rights, the interim guidance is a list of “gratuitous attacks” on sexual assault survivors, Landis Dauber added.
“This is cruel. It’s heartless. It’s designed to derail the education of victims and discourage reporting. Basically, the message to victims is ‘go away and suffer in silence. You’re on your own,’” Landis Dauber said.
Under the guidance, universities are allowed to consider the effect of the consequence on the accused, but not on the victim.
“We’re at the stage of investigation where the alleged perpetrator has now been found responsible, so we don’t have to call them the alleged perpetrator. They are now the perpetrator,” Landis Dauber said. “Now, the school has to consider the impact on the person who did it — but not the victim — of whatever punishment may or may not be meted out.”
The Friday announcement also impacts K-12 students who make complaints. The Obama administration required schools to provide interim accommodations during investigations, such as making adjustments to ensure the victim and the accused are not in the same class. These requirements applied to pre-K through college education.
But the Trump administration says it’s under the discretion of schools and colleges to provide accommodations. While the Clery Act provides some accommodations for college students, such as change of housing and course assignment, it does not apply to K-12 students.
“If your teacher assaults and your school decides not to remove [the accused] from the classroom, oh well,” Landis Dauber said. “If you’re assaulted by a student in your class or you’re being stalked, or are a dating violence victim and they are in your class and the school decides not to do anything until after the investigation, which now can be unlimited length of time, then too bad for you.”
The lack of a set time period for investigations means that sexual assault survivors could be waiting out the rest of their education without any resolution. By removing many of the protections that allow students to access their education free from interference of gender-based violence, experts say the interim guidance flies in the face of everything Title IX stands for. Without accommodations and protections, K-12 students have far less motivation to come forward.
The guidance also makes universities more vulnerable to litigation, said Landis Dauber.
“There are mistakes and the appeal is the school’s last attempt to catch it before it winds up in litigation. Litigation is time-consuming, expensive, wasteful, and damaging to students and schools who have to engage in it,” Landis Dauber said. “If we have more people in courts suing, that’s a failure. That’s a failure for schools and for students.”
Since the interim guidance was announced on Friday, some schools have announced that they do not have plans to change how they address sexual violence on campus. Washington University stated on Monday that it will not make changes unless OCR forces the university to do so.
“The goal has been to have the best process we can, keeping in mind that equity and that fairness — that thoroughness — and we know that the timeliness is where we’ve suffered. And we will continue to work on that,” said Jessica Kennedy, the university’s Title IX director.
Harvard University students advocating against campus sexual assault are pushing the school not to roll back changes it made since the 2011 guidance. According to the Harvard Crimson, a university spokesperson said the school is reviewing the interim guidance.