By Samantha Bartholomew
Education Secretary Betsy DeVos announced Sept. 22 that she is rescinding the 2011 Obama Administration guidance which states how schools should handle sexual assault cases under the Title IX law.
Title IX is a federal law that prohibits discrimination based on gender for schools and programs that receive federal funding, including protection from sexual harassment.
Schools that operate under Title IX are encouraged to inform students of their option to request confidentiality and available confidential advocacy, counseling, or other support services; and their right to file a Title IX complaint with the school and to report a crime to campus or local law enforcement.
The announcement comes just weeks after DeVos announced her intentions of reversing and replacing the Obama administration’s 2011 guidance on sexual assault, better known as Title IX, in a speech given at George Mason University on Sept. 7.
The Department of Education said it was withdrawing the Obama administration’s policy, which was implemented in a 2011 letter to schools, stating that it placed too much pressure on school administrators, favored alleged victims and lacked due process for people who had been accused of sexual assault.
DeVos concluded, “As I said earlier this month, the era of rule by letter is over. The Department of Education will follow the proper legal procedures to craft a new Title IX regulation that better serves students and schools.”
DeVos says her concern about the 2011 guidance includes the neglect of proper due process to the accused. The Education Department has released an interim guidance as of Sept. 22 that gives colleges the ability to set their own standards for evidence, practice informal resolutions to cases and establish their own appeals process.
The process of creating a new official guidance, which will allow the public to weigh in on how the department should dictate the way schools handle assault cases, is likely to take several months.
DeVos’s new guidance gives schools more flexibility for the standard of evidence used to investigate these cases. The previous guidelines suggested using a “preponderance of evidence,” meaning the decision makers were more than 50 percent sure an assault occurred. Critics said a higher standard should be used, such as “clear and convincing evidence” of an assault, which will now be an option.
DeVos’s new, temporary standard offers no specific outline about how long schools must take to investigate assault, which victim advocates worry could drag out investigations.
College administrators who handle issues under Title IX, which requires schools to address sexual violence on campus, say this interim period could make it more difficult for them to do their jobs.
The interim guidelines still require each school to have a coordinator that will report and documate all incidents of sexual assault as required by the Clery Act of 1990.
Under the Clery Act, a federal law that intersects with Title IX, a bill of rights for victims of campus sexual assault requires colleges and universities to notify victims of counseling resources available to them, notify victims of the option to report a case to either the school, law enforcement, or both, and to provide academic or living accommodations, such as changing dorms, classes, etc. to victims.
Critics were quick to denounce the interim guidelines.
“This is a disgrace and a disservice to everyone who has worked to address sexual violence. Congress must act to undo this terrible decision,” Senator Bernie Sanders tweeted.
Civil rights attorney Alexandra Brodsky said she disagrees with the decision to rescind and calls on schools to maintain their responsibility to ensure student survivors can continue to learn.
“We are calling on them and counting on them to be leaders here,” Brodsky said.
Brodsky criticized the interim guidance’s allowance of direct cross examination.
“The old guidance never forbid cross examination of witnesses,” Brodsky said. “It strongly discouraged direct cross of alleged victims by alleged assailants.”
By allowing direct cross examination, a survivor could potentially be directly questioned by their assailant, as opposed to being questioned through an intermediary or representative.
“That’s why the old guidance suggested schools could have students submit questions through intermediary board. That’s what Harvard Law School does now,” Brodsky said. “There are many ways to promote truth-seeking and provide opportunities for parties to push back on others’ narratives without direct cross.”
However, some applauded the department’s announcement.
“While the previous guidelines were based on good intentions, the unintended consequences were that it did have the deck stacked against the accused students,” college disciplinary lawyer Kimberly Lau said. “Walking into the process as an accused student, already many of my clients were feeling as if they were guilty before proven innocent.”
This has been the primary reasoning behind DeVos’ desire to reverse and replace the original guidance.
“This conversation has too often been framed as a contest between men and women or the rights of sexual misconduct survivors and the due process rights of accused students,” DeVos said in her address. “The reality is, however, a different picture. There are men and women, boys and girls who are survivors, and there are men and women, boys and girls who are wrongfully accused.”
Though the issue’s prominence suggests a recurring issue, a review of research conducted by the National Sexual Violence Resource Center finds that false sexual assault reporting occurs two to 10 percent. This estimate is backed by a 2006 study that analyzed 812 sexual assault reports from 2000-2003 and found a 2.1 percent rate of false reports.
“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” DeVos said in a release. “Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”
The Department of Education said that they plan to continue to speak to survivors, campus administrators, parents, students and experts about sexual misconduct as they finalize and organize a new and permanent Title IX regulation.
“We also will continue to work with schools and community leaders to better address preventing sexual misconduct through education and early intervention,” DeVos said.
There have been no further update as to when or if DeVos’s Title IX replacement plan will officially replace the guidance.