U.S. Secretary of Education Betsy DeVos announced Thursday afternoon the Department of Education will replace what she called a “failed” system of addressing sexual misconduct on campus with a new focus on due process and the rights of accused students. Some cheered the change of course on enforcing Title IX, but many — including sexual assault survivors and advocates at the University of Michigan — read Thursday’s announcement as a rollback of Obama-era guidelines, with no clear plan of action in sight.
In a speech at George Mason University, DeVos railed against “kangaroo courts,” or the complex legal processes many universities have in place to redress reports of sexual misconduct. All parties — but especially accused students, she said — experience violations of their due process rights during investigations.
“The notion that a school must diminish due process rights to better serve the ‘victim’ only creates more victims,” she said. “Any perceived offense can become a full-blown Title IX investigation. But if everything is harassment, then nothing is.”
Under former President Barack Obama, the Department of Education’s Office of Civil Rights wielded Title IX to pressure campus administrations into “immediate action” upon notice of harassment at the expense of receiving federal funding. To date, the OCR has conducted 435 investigations into colleges’ mishandling of sexual assault; the University’s case opened in 2014 and remains pending. Upon DeVos’ appointment under President Donald Trump, many braced for a dismantling of stringent guidelines.
Jennifer Salvatore, founding partner at Salvatore, Prescott and Porter law firm, noted an unfortuate lack of surprise at the announcement.
“It’s disappointing but not surprising to see this administration roll back these guidelines,” Salvatore said. “The 2011 Dear Colleague letter helped provide guidance to universities in an important area and put renewed focus on the very real problem of sexual assault on campus. There has been a sea change in the last ten years in terms of how campuses address sexual assault. and while the processes put in place by colleges are not always perfect, the rollback of guidance that clarified necessary protections for victims is not the solution.”
University alum Fabiana Diaz, an advocate and survivor herself, met with DeVos over the summer as a part of a summit on sexual assault. She said she voiced her concern about survivors taking on the “burden” of advocacy work, and pled with DeVos to preserve Title IX protections.
Diaz said she believed DeVos alluded to her remarks in her speech.
“A survivor told me that she is tired of feeling like the burden of ensuring her school addresses Title IX falls on her shoulders,” DeVos said. “She is right. The burden is not hers, nor is it any student’s burden.”
Still, Diaz said, she was perplexed by the mixed messages in the announcement.
“(DeVos) told me she heard me that day … and I do feel like she came with a little bit more compassion today,” she said. “But she still made it sound like a 50/50 issue of accusers’ rights being violated, when in reality, survivors are much more vulnerable. I still don’t know what my rights were in my investigation.”
Diaz’s case was adjudicated at the University before the wave of activism on campus around sexual assault awareness. Following the Dear Colleague letter, a high-profile case involving a former football player and protests, the University conducted its own campus climate survey in 2015 under University President Mark Schlissel: 11 percent of all students reported experiencing non-consensual sexual behavior. The Sexual Assault Awareness and Prevention Center spearheaded a push for more trainings on bystander intervention and consent. And after a lengthy — and public — revision process, the University released an updated sexual misconduct policy last summer.
Much of the new policy attempted to redress the concerns of unfairness DeVos raised in her speech: witnesses’ information is now disclosed to both parties in an investigation; the definition of consent is much clearer; and an independent, expert external reviewer each investigation; respondents and claimants are now able to appeal to an external, third-party reviewer if they take issue with the findings.
Deborah Gordon is a Michigan-based attorney who has represented a number of accused University students — including a controversial John Doe case that made it to a federal court last winter — and alleged the University’s updates still don’t do enough to ensure due process. Still, however, she noted the University’s internal processes, pacing with trends in other federal policies like the travel ban — are unlikely to be significantly affected by changes at OCR.
“The University drank the Kool-Aid on sexual assault,” she said. “They’ll still operate under the cover of ‘Dear Colleague’ to pursue these investigations.”
University spokeswoman Kim Broekhuizen wrote in an email statement the University remains committed to making campus “as safe as possible.”
“At this time, we will continue to follow our current policies and procedures for addressing matters of sexual misconduct on our campus,” she wrote. “We will be following the rule making process closely.”
More troubling to sexual assault advocates was the ambiguity of DeVos’ speech as to next steps for DOE and the OCR. DeVos suggested alternative measures such as regional Title IX investigation centers or task forces of lawyers, but introduced no concrete policy initiative.
Rackham student Nicole Bedera researches colleges’ interpretations of Title IX across the country, and expressed concern about the implications of DeVos’ lack of clarity.
“It is hard to know exactly what the impact of DeVos’ statements will be,” she wrote in an email interview. “What is clear is that DeVos’ main focus moving forward appears to be the protection of students accused of sexual misconduct — and particularly those who have been falsely accused. Considering the empirical data we have on the rarity of false allegations of sexual assault, this is a misguided approach to take.”
Most methodical studies of sexual assault place false reporting statistics from 2-8 percent of all reports of sexual misconduct. Bedera wrote DeVos’ misinterpretations could irreparably damage survivors’ claims.
“In all likelihood, it suggests DeVos’ misunderstanding of what constitutes sexual assault and that could have very real and very harmful implications for survivors on campus,” she concluded.
Many experts agree both red tape and broad definitions of harassment in campus sexual misconduct policies can threaten due process rights; a group of researchers from the Harvard Law School submitted a memo to DOE earlier this month urging the department to reevaluate “Dear Colleague” directives as such. Gordon added many processes rush to assume the accused student’s guilt.
“You can’t pick and choose who you give due process to, and I’m happy someone’s finally talking about due process … even if it is Betsy DeVos,” she said.
Still, statements from various actors signal a steady course in the University’s own proceedings. SAPAC released a statement Thursday affirming its commitment to the campus community.
Diaz, a former SAPAC volunteer, said she’s hopeful about the University’s positive trajectory in protecting survivors’ rights.
“I’m proud of the way (the University) has stepped up, and we have to set the example,” she said. “We definitely have Brock Turners on our campus. I challenge the University to stand with survivors.”
Diaz went on to recount her own sexual assault during the Summer Bridge Scholars program before her freshman year.
“I got raped on my second day on this campus and these freshmen are just stepping foot onto (it),” she said.
Despite the University’s concerted efforts, she warned of the consequences of top-down messaging from DOE on individuals’ perception of safety within the system. As of the 2015 survey, just 3.6 percent of students who experienced nonconsensual behavior reported to an official University resource.
“It’s already happening. And the process already isn’t easy for a survivor. I would not be surprised if reporting rates go down… it’s an awful message the beginning of the semester for students to hear,” she reflected.
“It gives me rage and motivation to keep on fighting,” she said.