How Betsy DeVos Is Rewriting Campus Sex Assault Policy

Oakland, CA — Editor's note: This interview was based on the draft of the Education Department's policy proposal, which was leaked in August. The official proposal, which came out November 16, is slightly different from the draft version we reported on.

It's been just about a month since Brett Kavanaugh’s confirmation to the U.S. Supreme Court, despite allegations of a sexual assault from when he was in high school 30 years ago.

The Senate’s dilemma at his confirmation hearing—to determine the credibility of accuser and accused—is mirrored in school districts across the country. In cases of sexual misconduct involving students, administrators are tasked with investigating and deciding on consequences. This heavy burden is legally required by Title IX, a broad federal law guaranteeing equal educational access between women and men.

Now, Education Secretary Betsy DeVos is planning to release new campus sexual misconduct policies that are expected to increase protections for the accused and limit liability for schools.

Equal Rights Advocates is a national non-profit that works to ensure women's equality, including survivors of campus sexual assault. In an email interview, Staff Attorney Maha Ibrahim shared ERA's concerns about how the Trump administration's policies would affect schools' handling of sexual harassment and assault allegations. 

This interview has been edited for length. This is Part 1. Click here for Part 2

What are schools currently required to do—under Title IX—when a student reports sexual assault?

The 2001 guidance, issued by the George W. Bush administration, stated that schools are required to:

• Investigate whether harassment or assault occurred, and

• Publish procedures for the prompt and equitable resolution of sexual harassment complaints, and

• Address the sexual harassment and assault if it was serious enough to limit or deny a student’s ability to participate in school programs.

However, this guidance was vague, and schools were still uncertain of what these procedures should look like or how to provide a fair and equitable resolution.

Under the Obama Administration, a series of letters and guidance documents were released to clarify these requirements for schools.

However, the Trump Administration revoked the Obama-era guidance in 2017, leaving a huge gap in guidance for schools. This means that schools once again do not have clear direction on how to address sexual assault or harassment.

In our experience, this lack of clear guidance and trauma-informed, common-sense requirements — a “Wild West” where different schools and even different employees within a school are just “winging-it” — results in tragic outcomes for students.

What do we know about the Department of Education’s proposal for a new campus sexual assault policy?

The Department of Education’s proposal introduces a number of very serious and problematic changes.

First, the new rules would only apply to sexual assault that occurs on campus. This means that if an assault occurs at a student’s home, on a school trip, or if there is any online sexual harassment that occurs outside of school hours, schools would not be required to investigate. This ignores the fact that even if assault occurs off campus, it more often than not affects the ability of the victim to access education. 

Second, the proposed rules would limit the duties of school employees to respond to sexual harassment by only requiring individuals who have the “authority to institute corrective measures” in a school district to respond to sexual harassment. This will likely be limited to Title IX coordinators and certain school officials, meaning people such as teachers' aides, playground supervisors, cafeteria workers, and RAs on college campuses would no longer be required to report if a student tells them about sexual harassment or assault, or if they witness sexual harassment or assault.

Third, the proposed policies would also allow schools to delay their own investigations, perhaps indefinitely, if there is a police investigation occurring at the same time.

Criminal investigations can take a long time to complete, and by deferring to police, schools may be able to use this as an excuse to not investigate until students graduate or otherwise leave the campus by transferring or dropping out.  And many victims don’t want to file criminal charges.  The criminal process is difficult, long, and can be very re-traumatizing.

Fourth, the new regulations also encourage retaliation against individuals who report sexual assault by allowing schools to punish both victims and witnesses if the school thinks a complaint or a statement was made in bad faith. This could have a chilling effect on survivors coming forward.

Fifth, these new standards also make it easier for religious schools to opt-out of being required to comply with Title IX.

What is the current legal standard schools apply to sexual harassment? How would raising the legal standard be challenging victims of sexual assault?

Under the Obama-era guidance, [schools relied on a legal standard called preponderance of evidence, meaning] schools had to determine if the harm or harassment reported in a complaint was more likely than not to have occurred. Under the new guidance, the standard is sharply raised to clear and convincing evidence. This is an incredibly high standard for student misconduct investigations.

Preponderance of the Evidence requires the tipping of the balance of evidence in favor of the victim in order to hold the alleged harasser accountable. This is the standard of proof that is used in nearly every non-criminal case.

Clear and Convincing Evidence is a legal standard usually reserved for criminal charges, which requires proof that it is substantially more likely than not that the alleged act or acts occurred. This legal standard requires evidence that is strong, clear, and leaves no doubt when presented. It is only one step below the "beyond a reasonable doubt" standard.

Clear and convincing evidence almost never exists in cases of sexual harassment and assault, where it often comes down to he-said, she-said, and where witnesses are often not witnesses of the assault itself, but of events and communications surrounding the assault, as in “she called me right after the party and she was crying and said he raped her,” or “I saw that she was passed out and I saw them go in the room where she was and lock the door,” not “I saw them rape her,” or “here are photos of them harassing and molesting him.”