Betsy DeVos’ confirmation threatens Title IX enforcement

Monday, February 6, 2017 - 8:08pm

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Illustration by Michelle Phillips

Under President Donald Trump’s administration, the fate of Title IX and actions associated with it, both nationally and at the University of Michigan, are uncertain.

In 2011, the U.S. Department of Education’s Office for Civil Rights, in conjunction with then-President Obama’s administration, released a “Dear Colleague” letter to universities, emphasizing Title IX’s prohibition of discrimination “on the basis of sex in education programs or activities operated by recipients of Federal financial assistance.”

This guidance stipulated universities’ obligations to promptly respond to sexual misconduct claims on their campuses.

The University of Michigan is one of over 240 schools undergoing a formal investigation by the Department of Education of its handling of sexual misconduct cases. The investigation began nearly three years ago, in February 2014.

The University has since come under fire for failing to release documents related to the investigation in a timely manner. A Freedom of Information Act request was filed against the University in 2015 for the release of documents such as written complaints, emails and other statements to further the investigation. The request was paid for in part by The Michigan Daily.

As of now, the investigation is still underway, according to University officials. However, its continuation is questionable given the overhaul set to occur within the Department of Education in the coming weeks.  

The vote to confirm Betsy DeVos, Michigan native and education activist, as secretary of education is expected to occur Tuesday, according to CNN. DeVos is expected to be confirmed, because of the projection that Vice President Mike Pence will cast the tie-breaker vote in a Senate otherwise facing a 50-50 split, with all 48 members of the Democratic caucus and two Republicans opposing DeVos.

DeVos’ confirmation has been at the center of controversies surrounding the qualifications of Trump’s Cabinet selections. DeVos sparked particular concern upon responding to questions regarding Title IX at her hearing in January. When asked if she would preserve the Title IX guidance, her response was deemed ambiguous.

“If confirmed, I look forward to understanding the past actions and current situation better, and to ensuring that the intent of the law is actually carried out in a way that recognizes both the victim … as well as those who are accused,” DeVos said.

Upon further prompting, DeVos said it would be “premature” to affirm her commitment to the preservation of the guidance at that time.

As for the University’s investigation, in an interview with the Daily at the end of January, University President Mark Schlissel said the University has been cooperating with the OCR, but has not been apprised of the results of the investigation.

He said the University is looking forward to receiving the results so it can continue to foster a safe environment for students and support survivors of sexual misconduct.  

“We’re very anxious to have the investigation resolved to get whatever advice or guidance the Office of Civil Rights wants to offer so that we can do as good a job as possible making our campus safe,” he said. “We’re committed to the concepts of Title IX — to have a workplace, a study place, an environment that is free of discrimination and adverse aspects so that everyone has an opportunity to learn … I’m always committed to advice from OCR or other places about how we can do it better. But we haven’t heard anything. We’re still waiting.”

Schlissel pointed to a University campus climate survey administered on sexual misconduct in January 2015 as proof of his commitment to the issue. He said the University is utilizing different methods to address and fix the problem.

“We’re approaching it through educational programs, we’re approaching it by focusing our efforts where the survey told us the highest incidents of misconduct were,” he said. “We’re approaching it by combating the linkage with alcohol overuse, which is involved in many episodes of sexual misconduct, and we put out in July a year ago a revised set of policies for how we investigate and adjudicate accusations of misconduct.”

The updated sexual misconduct policy Schlissel referenced went into effect last July. Changes included an expanded, more encompassing definition of sexual misconduct, as well as adjustments to the definition of consent and the sanctioning process.  

Though the University plans to keep its policy as is, with the impending changes in the Department of Education, the fate of the investigation is unknown.

In an email to the Daily, University spokeswoman Dana Elger said the University is not going to speculate, as things at the national level are still in flux, though she reaffirmed the investigation is still underway.  

Mark Rosenbaum, a former University law professor, has worked with the American Civil Liberties Union and is now the director of the Opportunity Under Law Project at Public Counsel, a nationwide pro bono civil rights office. Rosenbaum said, though the authority of Title IX is firmly established, it is too soon to tell what will happen in regard to the investigations.

“Title IX is Title IX is Title IX; the law has been precisely what it is,” he said. “Although the Obama administration was the most vigorous enforcer of Title IX of any administration, where that goes from here, I don’t think we know.”

He said DeVos did not seem to exhibit familiarity with Title IX or express any commitment to its enforcement. He said he hopes and expects the Trump administration’s commitment will be as “resolute” as that of the Obama administration.

Rosenbaum noted that by way of investigations and other related efforts, the Department of Education publicized these issues and produced awareness at the student and campus level.

He said he thinks this contribution will be a driving force in addressing sexual misconduct, regardless of what happens.

“Not having the United States Department of Education out there is clearly not a good thing, but I don’t think you can reverse the momentum that the Obama administration created with respect to enforcement of Title IX,” he said. “I think even if the Trump administration turns us back on Title IX, I don’t think it’s going to get buried under the sand.”

Engineering freshman Lincoln Merrill, publicity chair of the University’s chapter of College Republicans, claimed the Obama administration received flak for overstepping its bounds.

“The law prohibits discrimination by sex or gender in an educational environment, that’s pretty much what it says,” he said. “There’s an argument that the Obama administration’s interpretation of it regarding sexual assault is a bit of stretch when it comes to the law itself. That’s not to say opponents of it do not care about sexual assault.”

Merrill said though sexual assault is clearly a problem, he believes the law is referring more to what is happening in classrooms and on the athletic field, or discrimination in the sense of not allowing someone to take a class or play a sport. He said DeVos did not confirm a reversal of the Obama administration’s interpretation of the law, but said she would continue to look into it.

He said he felt sexual misconduct investigations conducted by the University should be expedited, saying, some sexual assault claims are not entirely true, though this is very rare. Only 2 to 9 percent of sexual assault reports are found to be false according to research by the National Sexual Violence Resource Center. He also said the legal system is a more appropriate, efficient means for addressing sexual assault allegations.

“I think if you’re going to find out who is right and who is wrong, you should really go through the police department, the court and the legal process — not the University itself,” he said. “I don’t think that people who are working here for educational issues should have to spend all their time on these long investigations that law enforcement specializes in and is there to do.”

Holly Rider-Milkovich, former director of the Sexual Assault Prevention and Awareness Center, who oversaw the implementation of the new sexual misconduct policy, said in a March interview that a primary reason the University expanded its policy — and, along the same lines, sexual misconduct investigations — was to be compliant with the Clery Act and Title IX, both of which regulate sexual assault reporting and investigations at public universities.

Rackham student Nicole Bedera is one of several researchers working on a project that looks at how colleges have responded to guidance about how to interpret Title IX in the context of their campuses.

In an email to the Daily, Bedera wrote she expects the Trump administration to respond differently to Title IX issues than the Obama administration did.

“The Trump administration does not have the same commitment to addressing campus sexual assault that the Obama administration did,” she wrote. “Multiple key players in the Trump administration, including Betsy DeVos, have spoken against the interpretation of Title IX currently used by the Department of Education. Title IX will likely remain on the books as written, just as it did in the Obama administration, but I suspect it won't be enforced the same way it has been in recent years in regards to sexual assault.”

She continued by stating she sees two potential scenarios. She thinks the new administration will create its own policies around Title IX or stop enforcing existing policies.  

“If the Department of Education stops enforcing existing policies, there might be enough momentum on college campuses to maintain the changes made in the past two years and some campuses may even have a strong enough commitment to the fight to continue to innovate and support survivors — especially if student activists continue to put pressure on their schools,” she wrote. “But the schools that are still failing survivors will have no reason to improve services.”

She added, alternatively, if the administration creates new policies, survivors will likely not receive the same gains.

“The administration has hinted that they don't see the value in many policies aimed at preventing violence against women and offering survivors resources for recovery, including the Violence Against Women's Act and support for Planned Parenthood,” she wrote. “I can't imagine the administration would be any more sympathetic to the struggle for safety on campus.”

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