7 Ways the Trump Administration’s Interim Guidance on Title IX Hurts Survivors

On Friday, Secretary of Education Betsy Devos rescinded Obama-era guidance on Title IX that outlined how colleges and universities were expected to respond to sexual assault allegations and work to prevent violence on campus. As part of the interim guidance, the Department of Education released a Q&A outlining how schools should respond to allegations of sexual assault that undoes much of the progress the former documents had put in place. In the place of an evolving and nuanced set of policies on sexual assault, she has installed chaos and confusion.

The Feminist Majority Foundation (FMF) released a statement condemning DeVos’ decision to officially “rescind policies and guidance that protected survivors of sexual assault and worked to reduce the high levels of sexual assault on college and university campuses.” Similarly outraged survivors, accomplices and advocates have been mounting a resistance to Devos’ guidance and her other attempts to minimize civil rights in the Department’s work. “Today’s guidance allows schools to systematically stack campus investigations against survivors and push survivors out of school,” Know Your IX said in a statement Friday. “The Department of Education is sending the message that they value survivors’ access to education less than that of the students who assault and abuse them.”

DeVos’ guidance does nothing to “fix” the Obama administration’s guidance or address the complexities of anti-violence work. Instead, it hurts survivors in tangible ways.

These are just seven ways that the Trump administration’s guidance hurts survivors and makes campuses less safe.

Protestors march at a Slutwalk at MSU. Matt Radick for The State News / Creative Commons

#1: It changes the standard of evidence required in sexual assault cases—tilting the scales toward alleged perpetrators. 

The Obama administration’s guidance required colleges to adopt a “preponderance of evidence” standard in sexual assault cases. This means cases were decided based on whether it was more likely than not that the misconduct had occurred, sometimes referred to as a 51 percent standard. The Department of Education’s interim guidance allows universities to modify the standard of evidence in campus sexual assault cases, specifically giving colleges the choice to move from preponderance to a “clear and convincing standard” of proof. While both are less rigorous than the “beyond a reasonable doubt” standard used in criminal courts, the new standard makes it increasingly difficult for survivors to prove their case—and requires survivors on campus meet more rigorous standards of evidence than is necessary in most civil cases and discrimination suits. Perhaps the biggest change from the Obama-era guidance, this practice puts survivors at risk by allowing schools to support the education of a respondent more than that of a complainant, ultimately giving a default advantage to perpetrators. Know Your IX puts this action in perspective, explaining that it “contradicts decades of bipartisan agreement; indeed, in 2004, the Bush Administration found Georgetown University noncompliant with Title IX for using a clear and convincing standard.”

#2: It allows survivors to be cross-examined by their alleged rapist. 

In the 2011 DCL, Obama prohibited the accused from being allowed to cross-examine their accuser. However, the new guidance allows survivors to be cross-examined by their assailant. The decision to revert back to pre-Obama guidance allows schools to support rapists in intimidating survivors into silence. Allowing for cross-examinations in this manner pushes schools to return to a time when, as stated by Know Your IX, “Survivors stayed silent for fear that the act of reporting to our school would be more traumatic than the assault itself.”

#3: Schools can now deny survivors the right to appeal—but not the accused.

Guidance under the Obama administration encouraged schools to have an appeals process for both the survivor and the accused. This was especially true “where new evidence arose or procedural issues colored an initial investigation.” Devos’ guidance, however, allows schools to not take appeals as well as gives the option to reserve the appeals process for accused students. Rejecting survivors appeals hurts anti-violence efforts as it ultimately denies fair process to survivors and further pushes schools to side with the accused.

#4: It encourages schools to mediate sexual assault cases.

The 2011 DCL forbid mediation in sexual assault cases “even on a voluntary basis.” Specifically, the Office for Civil Rights deemed it inappropriate for an accuser to be required to work directly with their alleged assailant, especially without a trained counselor or mediator. Under the 2017 guidance, rapists can have informal resolution sessions with the person they violated. This means that schools will be able to revert back to their pre-2011 tactics in order to rid themselves of responsibly dealing with on-campus sexual assault: pushing survivors to “work it out” with their rapists in order to foster a climate of fear of reporting assaults.

#5: It permits schools to delay investigating rape cases. 

While Obama’s guidance allotted colleges 60 days to complete a Title IX investigation, Dev’s guidance provides “no fixed time frame under which a school must complete a Title IX investigation.” The interim guidance leaves it up to a school’s “good faith” to resolve cases in a timely and impartial manner. Rescinding any time restraint on sexual assault cases allows schools to drag out cases for months or even years, causing unnecessary stress for survivors not to mention making it possible for alleged assailants to graduate before having their case resolved. Know Your IX explains that, prior to the 2011 guidance, “Schools forced survivors to undergo an unnecessarily lengthy, traumatic process that often led to survivors dropping out of an investigation, or out of school entirely. Neither survivors nor accused students deserve to have an unnecessarily long investigation disrupt their educations.” Ultimately, removing this accountability measures relieves schools of the duty to even attend to rape cases and, more broadly, the sexual assault epidemic on campuses across the country.

#6: It treats false rape claims as widespread, not rare. 

As End Rape on Campus reported in a recent statement, “The magnitude of campus sexual assault is undeniable: 1 in 5 women, 1 in 16 men, and nearly half of all LGBTQ students will experience sexual violence in college.” Disregarding these facts, Devos claims that rescinding the Obama-era DCL is necessary in order to ensure all students are treated fairly, specifically that accused rapists are protected from false claims and undue harsh punishment. Echoing alt-right and so-called “meninist” ideologies, Devos’ reasoning disregards the fact that most women don’t lie about being raped and fails to take into account that, although they occur occasionally, false rape accusations are incredibly rare. By focusing on the alleged assailants, the interim guidance tips the scales in favor of perpetrators and further solidifies dangerous myths about the commonality of false rape claims.

#7: It disregards the historical biases against victims, specifically victims of color. 

Previous guidance, including the 2011 DCL, largely failed to recognize the racial impact on Title IX. It follows that, any change in Title IX would hopefully increase support for survivors by working to dismantle both the historically racialized biases against black and brown victims as well as legacies of punishing men of color for assaults they didn’t commit. Unsurprisingly, Devos’ new guidance does nothing to address the intersections of race and sexual assault.

Taliah Mancini is an editorial intern at Ms.

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