DeVos decries 'failed system' on campus sexual assault, vows to replace it

Washington Post

Education Secretary Betsy DeVos spoke of the need to replace the "failed system" of campus sexual assault enforcement Thursday, to ensure that such procedures are fair to all students.

DeVos spoke to about 100 invited guests at George Mason University, where protesters had gathered outside, worried that she would announce changes to the way sexual violence cases are handled on campuses across the country.

"One rape is one too many," DeVos said. "One assault is one too many . . .

"One person denied due process is one too many."

She said the department would go through a formal process seeking public input in order to replace the current system with a more effective and just system.

DeVos, one of the most visible and controversial members of President Donald Trump's Cabinet, has been telegraphing for months that she would take action on sexual assault.

And she made clear that she believed the system was broken for all students - not just students who survived assault, but those wrongly accused of assault, whose voices she said had too often been silenced in the national debate over campus rape.

"Their stories are not often shared," she told reporters in July, after "emotionally draining meetings" with survivors, accused students and college administrators. "No student should feel like there isn't a way to seek justice, and no student should feel that the scales are tipped against him or her."

Survivors' advocates decried DeVos' emphasis on wrongly accused students as out of step with reality, saying only a fraction of rape reports are found to be false. The criticism only intensified after Candice Jackson, acting head of Education's civil rights office, told the New York Times in July that "90 percent" of campus sexual assaults were really drunken, regretted sex. Jackson later apologized for her statement, saying she had been "flippant," but the remark spurred a torrent of calls for her resignation or removal.

For years, victims and advocates complained that university officials would prefer to ignore allegations of rape and sexual assault to avoid either bad publicity for the institution or getting mired in complicated, difficult-to-prove cases.

The Obama administration pushed colleges to do better - to respond more quickly and more comprehensively, resolve the complaints and protect students who reported sexual assaults.

And it did so with real force: the threat of withholding federal funding to schools that did not comply.

Advocates were relieved that traumatized victims had recourse without having to go through a criminal trial; they could press to have their attackers expelled from campus, and file a Title IX complaint if administrators weren't responsive enough.

But critics warned that the push went too far, creating makeshift courts on campuses ill-equipped to judge such cases, adding rules that make it difficult to ensure a fair hearing for both sides.

The 2011 directive changed the way colleges respond to allegations of sexual assault, ensuring that the cases were treated as priorities and changing the way they were evaluated. Both students in a case are allowed to appeal the findings. And colleges are required to use a different standard of evidence than is used in criminal trials.

Rather than the "beyond a reasonable doubt" standard used in criminal cases, or the "clear and convincing" standard some universities had previously used for sexual assault investigations, schools now must use a "preponderance of the evidence" standard, often described as "50 percent plus one," when determining responsibility in such cases.

Supporters said the standard had been used by many institutions already, and made sense because college officials weren't determining whether someone should be sent to jail, just whether they had violated school policies.

Laura Dunn, the founder and executive director of the advocacy group SurvJustice, said that "beyond a reasonable doubt" is really only appropriate for criminal law - it's intentionally skewed to protect those who are accused.

"That's not really appropriate on the campus level. We're not locking people up, executing them, putting them away for years denying their liberty."

Critics said that the lower evidence standard was unfair, with expulsion and other serious consequences at stake, and that the hearings were often deeply flawed.

"These sexual misconduct hearings on campus lack a huge number of the due-process protections that Americans expect" when determining the truth or falsity of an accusation, said Robert Shibley of the Foundation for Individual Rights in Education. Those include the right to have an attorney, to have proper notice of the charges, and to know exactly what the accusation is, he said.

Shibley said he was troubled by the model some schools use, of having a single investigator paid by the university determining whom to talk to, what happened and what the punishment should be.

"If you have a single investigator who's terrible or who's ideologically aligned one way or the other, you're going to have a problem," said Scott Schneider, a lawyer specializing in higher education. But overall, he said, having a trained professional with experience in such cases is a good model.

Earlier this week, FIRE announced its analysis of how top universities investigate accusations of misconduct on campus. Susan Kruth, senior program officer for legal and public advocacy, said she was shocked by the lack of due process protections; nearly three-quarters of the schools didn't guarantee students they would be presumed innocent until proven guilty, for example. "The majority of institutions were lacking the majority of these safeguards that we consider pretty basic and fundamental," she said. "These schools aren't providing fair hearings."

The Obama administration's actions effected real social change, said SurvJustice's Dunn. "We not only saw student survivors know more about their rights, share their name, share their story, file those complaints, but campuses really stepped it up."

Universities realized they couldn't just let these issues slide, she said, and needed to have dedicated Title IX coordinators on campus.

Still, she said, "I've definitely seen schools violate due process," something that she said is deeply frustrating and not in anyone's best interest.

"There is a learning curve," Dunn said. "But gutting things, changing things from scratch, going back to what it was before, when schools didn't fear enforcement unless there was a lawsuit," would be a giant step backward, she said.

There was considerable confusion about the 2011 guidance, said Terry Hartle of the American Council on Education. The department didn't go through the normal public notice and comment process, and questions asked by the council in 2012 went unanswered by the department. With the Obama administration so focused on enforcement, he said, individual institutions were hesitant to ask OCR for clarification out of fear that it might trigger an audit.

"What we have now is set of requirements, some of which are mandatory, others of which may or may not be mandatory, but the schools cannot be certain. Typically the schools take every requirement and treat it as mandatory," Hartle said.

"Institutions, in responding to claims of sexual assault, have a responsibility to support the victim and to be fair to both parties," Hartle said. "Figuring out exactly how to do that, when there are different stories about what happened, and no witnesses, and almost no evidence, and substance abuse may have been involved, can be extraordinarily difficult."

Catherine Lhamon, who headed Education's civil rights office under Obama, agreed that some schools have taken approaches that are not called for in the guidance and that are not fair to students. But she rejected the notion that the agency's civil rights enforcement efforts had pushed schools to err on the side of punishing students accused of assault.

"Over and over again, OCR found schools that were doing things that were not right. We called it when it harmed student survivors, and we called it when it harmed students who were accused," Lhamon said.

The federal government also increased scrutiny on schools to ensure compliance, and when officials investigated colleges for their handling of reports of sexual violence and harassment, they let the public know. The number of cases grew quickly: When the Education Department first made public the list of institutions under investigation in the spring of 2014, there were 55 schools on the list. Now there are 257, with 360 open cases.

Sexual assault survivors and their allies saw the rising numbers of investigations as a sign that the Obama administration was taking their concerns seriously.

Lhamon fears there is a strong sign from the Trump administration, as well.

"The clearest and most consistent signal from this administration has been that it is uninterested in civil rights at best, and opposed to civil rights at worst."

Some critics of the Obama approach argued that publicizing the names of institutions under investigation amounted to a public shaming of schools that hadn't been found guilty of wrongdoing.

Shibley said he appreciates the attempt at transparency, but thinks it would be more helpful if the Education Department took it a step further, providing more information about the nature of the complaints.

The list certainly puts pressure on universities to respond to such complaints, he said. "The concern is, while universities should be responding to cases, is the pressure helpful to the cause of reducing the incidence of sexual misconduct on campus and giving everybody a fair shake? When you have a situation where a university gets a black mark against its name, the incentive is to get it over with," he said. But that's not necessarily the most fair or compassionate thing to do in a given case, he said.

"Even when you handle these cases really, really well, with great policies and great people, 100 percent of the time, 50 percent of the people are upset with the result," Schneider said. "The institution has to make a finding. Someone is going to be disappointed with the finding." A complaint then sparks an investigation.

"The fact that an institution is under investigation is not necessarily an indictment of its policies or practices," Schneider said. And with not enough staff to investigate the cases quickly, the backlog of open cases is not particularly fair to either complainants or universities, he said.

Activists delivered petitions in support of Obama's policy Wednesday afternoon at a rally outside the agency headquarters. "The Department of Education should never turn its back on sexual assault survivors. Never," Sen. Kirsten Gillibrand, D-N.Y., said at the rally.

And on Thursday, before DeVos spoke at George Mason, about two dozen people gathered outside Founders Hall to urge the government to maintain protections for survivors of sexual assault.

"No survivor groups were invited to today's decision," said Jess Davidson, managing director of End Rape on Campus, one of several groups united for a small protest outside. "The fact that they're not in the room is not reflective of who's actually going to be impacted by the policy. We're gathering outside the speech to show how important survivor voices are."

Susan and Alexander Prout of Washington came to speak out as parents of a survivor. Their daughter Chessy Prout, 18, also at the gathering, said she was sexually assaulted in high school. She is headed to Barnard College in 2018 after taking a gap year.

"We need more protections for our kids," said Alexander Prout. "We don't need any rollback."

Staff writer Nick Anderson contributed to this report.

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