New policies that activists against sexual misconduct say will make it easier for colleges and universities to protect themselves in cases of campus sexual assault are set to be proposed by Secretary of Education Betsy DeVos, according to a New York Times report.
Most alarming, critics point out, the changes to federal policy on campus sexual misconduct will bolster the rights of the accused. The rules, obtained by the Times, would also encourage schools to provide more support for victims, but considering DeVos’ track record with education policy—especially when it comes to rolling back protections for victims of sexual assault and harassment—that’s not exactly confidence-inspiring.
This isn’t DeVos’ first go at tackling sexual assault on campus—the new Trump administration rules are a continuation of changes she announced last September that ended Obama-era Title IX guidelines that protected survivors. And while the new proposals will keep much of Title IX—the 1972 federal law banning sex-based discrimination at schools receiving federal funding—intact, it will redefine sexual harassment in schools and how institutions address incidents and allegations, the Times reports.
Here’s a quick breakdown of how DeVos and her team have addressed sexual assault on campuses so far.
DeVos quickly got rid of Obama-era rules and guideline:
In September of 2017, DeVos threw out a number of policies put into place by President Barack Obama’s administration. One key piece was the 2011 “Dear Colleagues Letter,” a comprehensive directive on how schools receiving federal funding should handle sexual violence on campus—everything from evidence-gathering protocol to how quickly cases should be investigated.
Many on the left—including California Senator Kamala Harris— argued that the decision would make it harder for assault victims to come forward.
“Every day on campus I see hundreds of women who have been sexually assaulted at least once, and 63 percent of sexual assaults are not reported to the police, according to the National Sexual Violence Resource Center,” Missouri State University student Hope Burnette told Glamour in September after the announcement.
“This is only going to weaken what little voice we already feel we have against those who have assaulted us, and give strength to those who still believe that ‘boys will be boys’ is a valid argument for groping a woman without her permission.”
The Department of Education has been criticized for valuing the accused over victims:
Some DeVos staffers are on the record saying some pretty problematic things about sexual misconduct. Candice Jackson, in her role as head of the Education Department’s Office for Civil Rights told the New York Times last July that investigative processes are not “fairly balanced between the accusing victim and the accused student.”
“Rather, the accusations — 90 percent of them — 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,'” she said, according to the Times.
She later issued a statement in an attempt to clarify, saying that her opinion was based on feedback from cases involving accused students, and even if complaints don’t allege violence, “all sexual harassment and sexual assault must be taken seriously.”
Democratic attorneys general have long taken issue with DeVos’ possible policy changes:
Twenty Democratic attorneys general were so concerned about DeVos rolling back Obama-era Title IX guidelines that they sent the education secretary a letter outlining what they saw as major issues with her plan. “While we recognize that there is a great deal more that can be done to protect students and agree on the importance of ensuring that investigations are conducted fairly, a rushed, poorly-considered effort to roll back current policies sends precisely the wrong message to all students,” they wrote.
“Yet there is every indication that is exactly the approach your Department is taking.”
DeVos wants to narrow the definition of “sexual harassment:”
This latest round of proposed rules would adjust the definition of sexual harassment and only hold the schools accountable for formal complaints made to the proper authorities. (For example, a resident advisor would not count as a proper authority.) According to the Times, sexual harassment would be defined 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.”
By comparison, Obama-era guidelines (which she killed in 2017) used a more broad definition of “unwelcome conduct of a sexual nature,” that includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
There will also be changes to how investigations are conducted—and that will impact victims:
There are also new proposed guidelines about how investigations are to be conducted.
“And, for the first time, the administration explicitly says that just as an institution’s treatment of a complainant could constitute sex discrimination, so would the treatment of the accused,” the Times writes. This is where the accused stand to hold more power.
“The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints,” Candice Jackson, the Department of Education’s acting assistant secretary for civil rights, wrote at the time of the rollbacks.
In addition, the rules will still employ DeVos’ policy of using mediation to reach resolutions, meaning the accused can cross-examine the victim. These latest changes as outlined in the Times would appear to be one of the final steps in a year-long endeavor by DeVos’ Education Department to do away with Obama-era guidelines.
However, Liz Hill, an Education Department spokeswoman, says the Times‘ report “is premature and speculative, and therefore, we have no comment.”
Sen. Kirsten Gillibrand (D-N.Y.) offered perhaps the harshest critique.
“When has @BetsyDeVosED ever stood with anyone but the powerful? She sides with for-profit colleges over students, lenders over borrowers and predators over survivors,” she tweeted.
“At every turn, she betrays her responsibility to the students she’s meant to serve. It’s sickening.”