Education Secretary Betsy DeVos is developing new policies for how sexual assault and harassment will be handled on college campuses — further rolling back the protections for victims that President Obama put into place.
DeVos’ new policies, which are still in progress but were obtained by the New York Times, would limit the instances in which colleges and universities are required to investigate, narrow the definition of sexual harassment and allow for a higher standard of proof in the cases they choose to investigate.
Victims’ advocates are decrying these new policies as a step backward in protection for victims of campus assault and harassment. “As I see it, there is absolutely no defensible reason for such a proposal,” says Sejal Singh, a policy expert with advocacy group Know Your IX. “DeVos is making it easier for schools to get away with doing nothing while sexual violence pushes survivors off campus.”
Last year, DeVos rescinded the 2011 “Dear Colleague” letter in which Obama laid out guidelines for how schools that receive federal funding must pursue accusations of assault and harassment, on the basis that “Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by [1972 anti-discrimination statute] Title IX.” Unlike the Obama administration’s guidelines, DeVos’ new policies would be law.
“When you’re assaulted by a classmate, and then have to see the assailant again every day in class — how are you supposed to focus on school? How are you supposed to succeed in class? That’s why schools have an obligation under civil rights law to address sexual harassment on campus,” Singh says.
In the 2011 letter, Obama set a new standard for schools to handle accusations of sexual assault and harassment, including using the lowest standard of evidence in investigations, and holding them responsible to investigate any and all accusations made.
Since the letter was released, men’s rights groups have claimed that the guidelines infringe on the accused’s rights to due process, and schools have objected to the amount of responsibility put on them to investigate claims. DeVos has expressed sympathy for this position in the past, causing outrage by taking meetings with men’s rights groups in 2017.
The new rules define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity” — a much higher standard than the definition in the Dear Colleague letter, which was “unwelcome conduct of a sexual nature,” including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
The proposed rules also limit accusations that schools are required to investigate to those of harassment or assault that took place on campus — not including, as the Obama guidelines did, anything that happens at off-campus parties. This dramatically lowers the percentage of assaults that schools would be required to investigate, since the Bureau of Justice Statistics estimates that 70 percent of sexual assaults perpetrated by and against college students occur either at the victim’s home or the home of another known person, and 87 percent of college students live off-campus, according to the Times.
“This is even worse than I imagined,” Singh says of this part of the proposal. “Those students shouldn’t be forced to go to school with their rapists simply because they happen to be assaulted down the street. Would it make sense for Larry Nassar not to be held accountable if he only abused student athletes at off-campus events? It’s absurd.”
Prior to 2011, many schools allowed the accused and the accuser to directly interrogate and cross-examine each other, meaning that a victim might be interrogated by their rapist. The Obama letter strongly discouraged this practice, on the grounds that it would be “traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.” The guidelines instead encouraged any questioning to be done through a third party, such as a lawyer or a member of the school committee handling the case. Under DeVos’ proposed policies, students would once again be allowed to question each other directly.
“So many survivors feel sick just being in the same room as the person who assaulted them. Imagine if a survivor knew that if they reported, their rapist would be able to directly question them,” Singh says. “Allowing survivors to be directly cross-examined by their rapist is a recipe for intimidating victims and undermining truth-seeking.”
Essentially, it appears that DeVos is doing exactly what victims’ advocates feared she would do when she first aligned herself with the complaints of men’s rights groups last year: providing loopholes that will allow colleges and universities to decline to take action on accusations of assault and harassment, and making it harder for victims to prevail in the cases that do make it to any kind of investigation.