Education Secretary Betsy DeVos rescinded groundbreaking Obama-era guidance on campus sexual assault that made it easier for survivors to seek justice—and now, several survivor-minded organizations are taking legal action to make the department reverse course.
"We want to stop Betsy from implementing a discriminatory and misguided policy that hurts survivors of sexual assault and harassment.” #StopBetsy #DefendTitleIX #TimesUp #MeToo pic.twitter.com/vKbrc5Fhq0
— Democracy Forward (@DemocracyFwd) July 19, 2018
Civil rights litigators— including representatives from Equal Rights Advocates, the Democracy Forward Foundation, the National Center for Youth Law and the National Women’s Law Center—have petitioned the Department of Education to retract and correct DeVos’ 2017 ‘Dear Colleague’ letter, alleging that it is both “unreliable and misleading.” In a complaint, the groups claim that the new guidance has had a “chilling effect” on campus sexual assault investigations, specifically the new requirement of a higher level of evidence in such cases and the elimination of investigation time frames.
“A lot of groups that are interested in campus sexual assault and in ensuring survivors maintain equal access to education were alarmed by the Department of Education’s rescission of Title IX guidance in September and the new guidance that the department promulgated,” Robin Thurston, a senior counsel for the Democracy Forward Foundation and a lead litigator on the case, told Ms., “So those groups quickly got in touch and started talking about ways that it would be possible to push back on the discriminatory and problematic guidance.”
Thurston sees recent remarks by Candice Jackson, the head of the Department of Education’s office for civil rights, as indicative of the discriminatory nature and intent of the Department’s policy changes. Last year, Jackson told the New York Times that 90 percent of campus sexual assault investigations “fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”
DeVos herself has also given survivor advocates cause for concern, especially after she conducted meetings with so-called men’s rights advocacy groups about campus sexual assault policies and began speaking publicly about her own concerns for the rights of alleged rapists. The anti-feminists DeVos was keeping company with often lament what they see as a decline in men’s due process—claims they bolster by spreading misinformation about false reporting. (False rape reports are exceptionally rare.)
“We allege that the policy is unconstitutional because it was created with the discriminatory mindset that women tend to lie about sexual assault,” said Thurston. “[The petition] deals with the principle that agencies should put forward information that is accurate, objective and unbiased, which is frequently a problem for the Trump administration. That letter [rescinding Obama-era guidance] really misrepresents how campus sexual assault policy had been formulated under prior administrations, and it borrows a lot of the language from the men’s right groups—stating that there is a crisis with due process violations on campus, and that is not really reflected in any sort of factual analysis or objective review of what is actually happening.”
Though many universities have retained policies that are in correspondence with the Obama-era campus sexual assault guidance DeVos has since rescinded, some universities are accepting her revisions—which Thurston told Ms. is “slowing down their resolution of investigations.”
One such school is the University of Kentucky, which updated its sexual assault policy last month to allow both the accusers and the accused to be joined by lawyers at any investigative panels and allow the lawyers to participate. Additionally, the new policy mandates that the panel must come to a unanimous decision in order to move forward with disciplinary actions for the accused—and though it does not allow the accusers to appeal any panel decisions, the accused are always given the option to do so.
A spokesperson from the university told Ms. that the goal for this new “balanced, compassionate approach” is to “be fair to all concerned, clear and consistent in the application of the policy, and compassionate to all those who are impacted.” They claimed that the new policy is more closely aligned with the criminal justice system, and stressed that the university has “an obligation to provide due process to those accused” at the same time that it has a duty to protect survivors—actions that mirror moves by DeVos and Jackson to downplay the occurrence of campus sexual assault and dramatize the possibility of false reporting.
Nearly seven months after the complaint was filed, and after an attempt by the government to dismiss the case on threshold grounds, a District Court judge in San Francisco agreed to hear the case last month. Advocates are hoping that the judge will soon move forward with the case; the government will have 60 days to respond to the litigators’ petition.
In the meantime, survivors on campuses across the country will have to come face-to-face with the practice of DeVos’ misguided and dangerous policies. Representatives from these universities may preach commitments to “community belonging”—but what they’re cultivating are communities where survivors lack the support and resources they deserve.