Betsy DeVos's Department of Education just rescinded Title IX guidelines to protect survivors of campus sexual assault, in a letter that gets even the basic facts about federal policy dead wrong.
Betsy DeVos, the unqualified billionaire and GOP megadonor heading Donald Trump's Department of Education, has long hinted she wants to roll back Title IX civil rights guidelines, which give campus sexual assault survivors a right to fair adjudication by school administrators.
At her confirmation hearing, DeVos refused to promise she would uphold the guidelines in their current form. And in July, she met with the National Coalition for Men, a so-called "men's rights" group that attacks feminists, battered women, and rape survivors.
Most ominously, DeVos named Candice Jackson as the Education Department's top civil rights attorney. Jackson, a libertarian legal activist who opposes the Civil Rights Act, has previously declared herself a victim of discrimination against whites, and recently claimed that "90 percent" of campus rape allegations "fall into the category of 'we were both drunk'."
And Friday, DeVos and Jackson confirmed the worst fears of women's rights advocates, issuing a new memo that rescinds over 20 years of federal guidelines on campus sexual assault.
The memo falsely claims that the 2011 "Dear Colleague" letter issued under the Obama administration "required schools to adopt a minimal standard of proof — the preponderance-of-the-evidence standard — in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing evidence standard."
In fact, a preponderance-of-the evidence-standard — which requires most rather than all evidence to support the victim — has been required in campus adjudication since 1995, and even before that, most schools used this standard voluntarily. It is the same burden of proof used in civil suits. It makes no legal sense to require a higher burden for something that is not a criminal conviction.
But the memo gets even worse from there: DeVos and Jackson encourage schools to set up rape adjudication more like a criminal trial, allowing anyone accused of rape to "cross-examine" their accuser.
In an article for the American Prospect, Yale Law graduate and campus rape survivor Alexandra Brodsky explains why that is a terrible idea:
Unlike universities, which respond to sexual violence under a broad mandate of combating gender-based discrimination and hostility, the state prosecutes these crimes to vindicate its own rights, with little regard for the survivor's desires or feelings ... providing accused students (or their lawyers in their presence) the chance to directly question their alleged victim, likely would contribute to the kind of hostile environment that these proceedings are supposed to remediate. Schools have a responsibility to make sure that victims don't need to live or study or even speak with their assailants. Their investigations should not create the very situations they were charged to prevent, nor dissuade survivors from coming forward.
The memo also suggests that schools should ban survivors from appealing the decisions of administrators — even if new evidence arises or if there was misconduct in the investigation — and gets rid of the requirement that investigations should be completed within 60 days.
As if all that were not enough, DeVos and Jackson are also rescinding the Obama administration directive that schools may not notify police without survivors' consent. This could force survivors to be interrogated by law enforcement, or even by their rapist, which not all survivors are emotionally capable of doing.
And the impact of this change could be frighteningly vast: studies have found that 88 percent of survivors who reported an assault to their schools believe fewer people will come forward if police reports are mandatory.
Not only are the proposals in this memo horrific, they seem to be based on slut-shaming narratives about an epidemic of college women making false rape accusations and universities denying men due process. This is virtually the opposite of how it really works.
According to the National Sexual Violence Resource Center, one in five women on college campuses will be victims of sexual assault, and 90 percent of them never report it. Every change outlined in this memo will only serve to make these numbers worse.
Gender violence prevention group Know Your IX issued a scathing response to the new federal policy changes:
Today's guidance allows schools to systematically stack campus investigations against survivors and push survivors out of school. The Department of Education is sending the message that they value survivors' access to education less than that of the students who assault and abuse them.
Before the Department of Education began taking sexual assault seriously, schools routinely violated survivors' rights and pushed them out of school. Survivors stayed silent for fear that the act of reporting to our school would be more traumatic than the assault itself. The Dear Colleague Letter — which outlined strong procedural protections for survivors and accused students alike — made it possible for survivors to come forward, trusting that their school would handle their case fairly and provide them with the resources they needed to continue their educations. Today, DeVos betrayed that trust and put years of progress at risk.
The rollback of campus sexual assault protections is yet another example of what happens when neither the president nor the people working for him have any understanding or concern for the policies they are meant to enforce, and the people those policies are meant to protect.