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DeVos to Use ‘Both Sides’ Approach to Campus Rape (Updated)

Nicole Knight

Legal scholars suggest DeVos' decision could set up a legal showdown with states such as California, New York, and Illinois.

UPDATE, September 22, 11:19 a.m.U.S. Secretary of Education Betsy DeVos on Friday rescinded guidance on investigating sexual assault on campus, the Associated Press reports. Details of the Trump administration’s interim rules replacing the Obama-era guidance were not available on the Education Department’s website, which was down due to “scheduled maintenance” as of Friday morning. 

U.S. Secretary of Education Betsy DeVos announced Thursday that the Department of Education will rewrite an Obama-era directive on campus rape, saying the Trump administration must uphold the rights of “all students.”

“There are men and women, boys and girls who are survivors, and there are men and women, boys and girls who are wrongfully accused,” DeVos said, speaking at the Antonin Scalia Law School at George Mason University. “The rights of one person can never be paramount to the rights of another.”

Obama’s Education Department issued the 2011 directive, known as a Dear Colleague letter, to push federally funded colleges to change how they handle campus sexual assault allegations—a decision that survivors had hailed as a necessary and vital protection.

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DeVos said that approach had “weaponized” the department’s Office of Civil Rights by forcing colleges to adjudicate sexual assault. DeVos said the department would open a notice-and-comment period to overhaul a “failed system” that denies students their due process rights.

“The era of rule by letter is over,” DeVos said.

Civil rights advocates have argued that the directive was a necessary clarification of Title IX law, ensuring that college students at schools receiving federal dollars can learn in an environment free of discrimination. The directive made it easier for survivors to prove their allegations by shifting to a less onerous standard of proof, called the “preponderance of evidence.” Before the letter, many colleges applied the more stringent standard of “beyond a reasonable doubt,” as Inside Higher Ed reported. The directive proscribed the length of investigations and no longer allowed colleges to punt reports of campus sexual assault to the police. 

The outcry against DeVos’ announcement was swift, as survivors took to Twitter, writing, “She might as well just say ‘God bless the rapists,'” and “I’m sure my rapist would very feel supported by Betsy DeVos right now.”

“This administration has made it very clear that they do not support survivors,” said Sage Carson, project manager with the advocacy group Know Your IX. “We know first hand how important Title IX is for all students, and we fear this administration is trying to turn back the clock to a time when survivors were routinely pushed out of school by sexual violence, when survivors were told by their schools to drop out and work at the Starbucks until their rapist graduated, and when survivors had to choose between dropping a class and dropping out of school so they no longer had to sit in a classroom with their perpetrator.”

In the run up to DeVos’ announcement, students, rape survivors, and advocacy groups delivered red backpacks filled with 100,000 written petitions to the Education Department, calling on her to uphold the 2011 directive.

DeVos’ announcement wasn’t a surprise. In July, she said the department must be more “neutral” and the directive “forced” OCR staff to make sweeping investigations into colleges’ handling of sexual violence on the basis of lone claims, as Politico reportedDeVos has met with campus rape survivors and —controversially—students who said they’d been wrongfully accused of sexual assault and expelled, as Rewire reported

DeVos on Thursday criticized what she called the Obama administration’s “failed system.” She said the Obama presidency’s policies backed what she described as an over-broad definition of sexual harassment.

“If everything is harassment, then nothing is,” DeVos said.

Legal scholars suggest DeVos’ decision could set up a legal showdown with states such as California, New York, and Illinois, that have incorporated provisions of the 2011 directive into state law, and the federal government, which is now set to abandon these standards, as Inside Higher Ed reported.

“Because of the Title IX revelation, a lot of states have created mimicking laws, tailored to the federal system, or that exceed it,” Peter Lake, a law professor and director of the Center for Higher Education Law and Policy at Stetson University’s College of Law, told Inside Higher Ed. “It almost has to go court, because that’s how to resolve conflicting legal mandates.”

On July, 20 state attorneys general urged DeVos in a letter to keep sexual assault reporting guidance for college campuses to help end the “scourge of sexual violence.” 

One in four undergraduate women are subjected to sexual assault or sexual misconduct by force, according to the American Association of Universities (AAU). But reports of sexual assault are as low as 5 percent, the AAU noted, largely due to victims’ fears of coming forward.

This summer, Jackson, DeVos’ civil rights chief, faced a hail of criticism for suggesting most sexual assault allegations were lies. Jackson told the New York Times that “90 percent” of campus sexual-assault complaints “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.’”

Jackson apologized for her comments, but has made other comments on rape allegations, calling the women who accused President Trump of sexual assault during the 2016 presidential election “fake victims. Jackson, an attorney, denounced feminism and race-based preferences at universities, once complaining she experienced discrimination because she is white. 

DeVos’ announcement isn’t the first rollback of Obama-era civil rights directives. In February, the Education Department and Department of Justice withdrew Title IX guidance on transgender students.

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