The U.S. Department of Education is set to release a new set of policies addressing campus sexual assault that advocates say would prioritize protecting the accused and institutions instead of survivors.
The proposed rules, first reported by the New York Times, would allow for the accused to cross-examine their alleged victims, let schools and colleges significantly narrow down the definition of sexual harassment, and give institutions to pick a higher evidentiary standard to determine whether the alleged perpetrators have committed misconduct.
Jess Davidson, the executive director of End Rape on Campus, condemned the guidelines proposed by Education Sec. Betsy DeVos and the fact that survivors were not consulted. "This is creating a policy environment that makes it safer to commit sexual assault on campus and get away with it, than to be a survivor of sexual assault on campus," she told Refinery29. "They haven't been including survivors since they've been preparing [the guidelines] and that's extremely disappointing to me."
In recent years, students have used Title IX — the civil rights law that made discrimination on the basis of sex in education programs illegal — as the best course of action to seek justice after being sexually assaulted or harassed. This has been particularly prevalent since the Obama administration issued a set of guidelines in 2011 detailing how schools that receive federal funding should investigate allegations of sexual violence.
But DeVos, who during her tenure as education secretary has changed how schools and colleges deal with several civil rights issues, began reforming Title IX last year. She first announced in September 2017 that her department would rescind the Obama-era letter and a 2014 question-and-answer document. The move was praised by groups representing students accused of sexual assault, who felt the guidance issued by the Obama administration trampled on the due process rights of alleged perpetrators. But advocates widely condemned the decision, saying that though imperfect, the 2011 guidelines were worth saving since they helped protect survivors and forced institutions to address an issue that otherwise would have been swept under the rug.
The new proposed guidelines would apply to colleges but also elementary and secondary schools. The Department of Education told the Times it's still "in the midst of a deliberative process," meaning the rules are not final. When DeVos issues the final guidance, it can go into effect without congressional approval, after a public comment period.
An aspect that is concerning to Davidson is that the rules would only require schools to investigate sexual assault cases that happen on campus or at university-faciliated events. The Obama administration previously required colleges to look into accusations regardless of where the case took place.
"A lot of fraternity houses are off-campus, a lot of bars are not on university property. It's extremely exclusive of students who go to community college or commuters' schools, students who are living at home and commuting for financial reasons," Davidson said. "It's would exclude everything that they experience and only focus on a small group of people, in a way that would leave thousands of survivors out."
The most debated aspect of the Obama-era guidances was the evidentiary standard known as "preponderance of evidence," where the proof offered shows it was more likely than not the correct version of events. DeVos is proposing that schools can choose between that standard or "clear and convincing evidence," which is used in civil cases. Institutions can also determine whether to allow an appeals process or not.
Davidson pushed back against the change, saying that the "preponderance of evidence" standard allows survivors and assailants to have equal footing during the case. "It assumes that nobody has done anything," she said, "and it's really about fact-finding and equity."
DeVos' new policy would also allow survivors to be cross-examined by the alleged perpetrators. Davidson said she thinks it's a terrible practice, given how traumatic it can be for a survivor to be forced to confront their assailant.
"This would really just mean that survivors won't report. Every survivor we talk to are going through the Title IX process because they want to be able to not have to live and learn in the same environment as somebody that sexually assaulted them," she said. "They can't handle their trauma of being around that person. To have them be cross-examined [by the perpetrator] is just outright cruel."
Some of the other proposed rules include using mediation as a tool to reach an informal resolution between the parties, which the Obama administration strongly discouraged; protecting institutions by only allowing to be held legally responsible for investigating "formal complaints"; and explicitly says an instutiton's treatment of an alleged assailant could also constitute sex discrimination. (The latter is an unprecedented move.)
Under the rules proposed by DeVos, the definition of "sexual harassment" would be severely narrowed. The administration is defining this is issue as an "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." The Obama administration defined it more broadly as "unwelcome conduct of a sexual nature."
"[The new standard] is extremely difficult to prove," Davidson said. "Because there is so much self-blame and rape culture is so pervasive, survivors and students would look at the standard and think, 'Oh, what happened to me isn't bad enough.'"
She added: "The reckoning this country has had over the last year has really been about saying, 'No. This is bad enough.' We can't continue to treat people this way. We can't continue to allow sexual assault and harassment to be ignored. What [this draft] does is send us back to a time where campus sexual assault was swept under the rug, and really deny the severity of experiencing sexual violence in [school], when this prevents equal access to education. That's why Title IX exists."