Analysis Law and Policy

By Muddying On-Campus Sexual Assault Policies, DeVos Is Making Students—and Schools—Less Safe

Jessica Mason Pieklo

Secretary of Education Betsy DeVos' announcement that the administration was rolling back Title IX sex assault protections hasn't changed the law, but it does represent a direct affront to survivors.

Last week, Secretary of Education Betsy DeVos announced the rollback of another Obama-era education policy meant to protect students.

This time around, the Trump administration is rescinding guidelines schools should follow when investigating claims of sexual assault. These guidelines are designed to protect the rights of both survivors and the rights of the accused. But instead, according to a leaked draft of the new guidance, the schools will be instructed to put survivors on trial.

None of this should come as a surprise.

The policy announced during the Obama administration instructed schools to take seriously allegations of campus sexual assault and outlined a series of procedures they must take under Title IX of the Education Amendments of 1972, which bans sex-based discrimination in schools.

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However, according to DeVos, those guidelines were too unfair to students accused of assault. “The truth is that the system established by the prior administration has failed too many students,” DeVos said in a speech September 7 at the Antonin Scalia Law School at George Mason University in Virginia. In that speech, she promised the Department of Education (DOE) would replace the “current failed system” with a “workable, effective, and fair system” that does more for both sexual assault victims and the accused.

However, those who worked on the policy under President Barack Obama were disturbed by DeVos’ remarks’ implications. “The secretary’s speech was incredibly damaging, and it returns us to the bad old days when we behaved as if we didn’t know what to do as a country about sexual violence in school,” said Catherine Lhamon, chair of the U.S. Commission on Civil Rights (USCCR), in an interview with Rewire. The USCCR is an independent agency charged with monitoring federal civil rights enforcement. Before working with the USCCR, Llamon was the assistant secretary for civil rights at the DOE and worked closely on the department’s guidance on sexual assault.

“We had made so much progress in the past few years and the secretary’s remarks set that progress back,” Lhamon continued.

DeVos’ announcement reflected previous rhetoric from the agency: Candice E. Jackson, acting assistant secretary for civil rights at the DOE, said in July that claims of campus sex assault are usually just a result of “regret” by the victim.

Llamon said that overall, such a shift deviates from the policy and comments of even previous conservative administrations.

“As early as the Reagan administration, the Office for Civil Rights issued guidance that discussed the ways in which the Office for Civil Rights would enforce Title IX to protect students from sexual violence in schools,” Llamon said. “So the notion now as expressed in the secretary’s speech that we need to essentially subject that question [of how to handle sexual assault] to popular vote sets us back in truly damaging ways and sows confusion where none had existed among the school community, now making sure no one knows that Title IX will be enforced.” 

Like DeVos’ attacks on trans students, this latest announcement doesn’t actually change the law: Title IX still protects campus rape survivors. “The law is unchanged,” said Llahmon. “The secretary of education does not have power to change the law.” In order for that to happen, Congress would have to pass new statutes or the Department of Education would have to proceed with administrative rule making, generally a long, arduous process.

In the meantime, however, DeVos does have the power to change how schools enforce the current Title IX protections.

The official new guidance has yet to be released. But a purportedly leaked draft of the memo suggests just how the administration plans to make sure “both sides” in these investigations get treated “fairly.” One suggestion in the draft memo is to allow a complainants’ entire sexual history to be introduced in the investigation, never mind that such a policy change would violate rape shield laws in criminal cases across the country.

The Trump administration has made its disdain and disrespect of the rights of survivors almost a key policy position. Trump ran his campaign in part on the fact that he could reportedly assault women without consequence. Republican voters didn’t care. He has stacked his cabinet full of anti-civil rights crusaders, including a whole lot of people who don’t like reproductive autonomy and have promised to go after abortion and contraception access. They’ve already started to do so.

This latest attack on rights by DeVos and the Department of Education is especially invidious. Campus sexual assault claims have been notoriously problematic for campuses to navigate, and procedures on handling claims could vary from school to school. That was the entire purpose of the Obama-era guidance: to guide schools in a uniform way on how to handle these cases with seriousness and caution. With a change in enforcement priorities but with no actual change to the law, DeVos is not just endangering students—she’s setting schools up for potential lawsuits.

Civil rights laws are designed to ensure that historically marginalized populations have the ability to participate equally in society as they choose. Equal access to education is one of those rights, and is the entire point of Title IX. Cutting off equal access to public education by making schools less safe for students is a direct affront to both survivors and the law.

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