Sexual assault is an uncomfortable topic. After decades of being shamed into silence, victims have begun to find their voices in the new century. Though the number of survivors reporting continues to grow, they face countless roadblocks in pursuit of awareness and justice. In 2011 President Barack Obama, on the same day he announced his re-election bid, sent the Department of Education a surprise “Dear Colleague” letter which reinterpreted Title IX to give the federal government far more control over procedures colleges and universities use to handle allegations of campus sexual assault. While celebrated by advocates, it soon became clear to legal scholars that the policy was, perhaps fatally, flawed. In 2017, President Donald Trump’s Secretary of Education, Betsy DeVos, announced an expected rollback of the Obama administration’s campus sexual assault regulations. This move was met with fierce public opposition and quiet support from several major news outlets. President Obama’s and Secretary DeVos’ campus assault policies each had good and bad components, but other factors also had major impacts on how their strategies were perceived by the public.
The Obama Policies
Though President Obama left office with a 60% job approval rating, in 2011 he was hovering in the high forties. The Democratic party had suffered punishing defeats in the 2010 midterms, losing control of the House of Representatives and loosening their grip on the Senate. Embarrassed, the administration re-centered its attention on identity politics to solidify the party base. Vice President Joe Biden had long been a staunch advocate of sexual assault awareness and prevention, famously drafting the Violence Against Women Act in 1994, and the Obama-Biden ticket capitalized on this in the 2008 campaign. But the “Dear Colleague” letter issued by the Office for Civil Rights was delivered long before the two became seen as crusaders against campus sexual assault. With no warning and little to no explanation, even six years later, the letter was largely an attempt to re-energize a disheartened base. Undoubtedly the administration also sought to reform the way colleges and universities respond to allegations of sexual assault, but in its rush to save face, did they tilt the scales of justice in favor of accusers?
Upon releasing the letter, the Obama administration’s education department called for all of the seven-thousand plus colleges which receive federal money to overhaul their procedures for adjudicating sexual assault allegations. By painting campus sexual violence as an issue of discrimination and civil rights and sexual violence as a form of harassment, the letter forced schools to use both a different adjudication system than would be used if the incidents were reported to law enforcement, and required the schools to act. The most controversial instruction enclosed was the requirement to hold students accused of sexual assault to the lowest possible standard of proof, “a preponderance of the evidence.” In using this standard, colleges could discipline, and even expel students if 51% of the evidence indicates guilt, whereas at many universities, occurrences of cheating and noise violations still use higher standards. Other questionable standards include requiring universities to give accusers the ability to appeal not-guilty judgments – essentially allowing double jeopardy – and all but outlawing cross-examination of accusers. The debate over whether these guidelines had gone too far developed into one of the hottest battles in education today. Accordingly, when the Secretary signaled her intent to eventually pull back these reforms, the public response was intensely divided.
On September 7, 2017, Secretary DeVos announced rollbacks of the Obama-era policy and instituted new temporary guidelines which remain in-place today, saying the system “is wholly un-American, and is anathema to the system of self-governance to which the Founders pledged their lives over 240 years ago.” Interim guidelines published by the Education Department the same day lifted the demand for colleges to use the “preponderance of the evidence” standard, allowing them to raise it to “clear and convincing.” Schools are also no longer required to hand down a decision in the first 60 days after a report is filed, and mediation may be introduced (it had been banned under Obama’s guidelines for fear it accusers would feel pressured to participate). Additionally, schools are now required to provide the same information to both parties and give equal access to procedures: both sides have the right to cross-examine or have a lawyer present. DeVos is using the window between this rollback and final implementation as a public comment period – a window the Obama administration neglected to offer before sending the “Dear Colleague” letter or finalizing the regulations in 2014. Amid attacks from activist groups and public figures alike – including former Vice President Biden – the Secretary drew “cautious applause” from the editorial boards of USA Today, the Boston Globe, and the Washington Post.
The applause is “cautious” largely because of the staggering unpopularity of the Secretary’s boss, President Donald Trump, whose approval rating at the time the new guidelines were announced sat an abysmal 36%. DeVos’ confirmation hearing was infamously hostile, and she quickly became a lightning rod for Democrats critical of the Trump campaign-turned-Presidency. Damaging mistakes were made when rolling out her proposed guidelines. Over the summer, top Education Department official Candace E. Jackson tasked with enforcing campus sexual assault had this to say, “[Campus rape] accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because [the victim] just decided that our last sleeping together was not quite right.” Although she later walked back the quote, some wounds are not so easily healed. DeVos herself also drew heavy criticism for meeting with a so-called “men’s rights” group, and possibly hinting at mandatory referral to law enforcement by suggesting schools ‘go back to doing what they do best, education.’ Both of these occurred while her Department was considering reforms of Obama’s policies.
With DeVos as one of the most visible symbols of the Trump administration in action everything she does is under a microscope, and Campus sexual assault has developed into a “hyper-partisan issue.” Factions have emerged, “with Democrats indiscriminately defending the rights of victims—often ignoring the reliability of evidence—and Republicans indiscriminately defending the rights of the accused—at times questioning the existence of the epidemic of sexual violence on college campuses.” While both sides retain elements of rational concern, at some point they each became, to a degree, radicalized, “the response to the new rules reflects the tribalism of campus sexual-assault politics—an issue that ought to be free from partisan bomb-throwing. Some conservatives caricature advocates for victims as snowflakes; activists too often tar critics of Title IX as chauvinists.” Feminist Harvard Law Professor Janet Halley has long been a critic of the Obama policies and co-authored a letter to the Department of Education in August which advocated several of the guidelines adopted by DeVos’ interim plan. Speaking to NPR Halley said,
“I think that people come into this debate on a side. They come in on the side of survivors. They come in on the side of the accused. I’m saying, let’s try to be on the side of all the students and from that point of view think about what we would want these programs to look like. And I think if we thought that way, we would be doing very different things than we are doing today.”
Questions involved in campus assault do not lend themselves to multiple answers, making this an even more treacherous issue to split by party line.
Many of the changes to the guidelines already put forth are based on legal precedent. Since colleges began adhering to the Obama guidelines in 2011, over 170 lawsuits have been brought against universities by males accused of sexual assault who say they were wrongly punished and or their right to due process was violated. They have been on the winning side of 69 judicial decision, and fewer than 50 have lost. An important note here is that there is no universal definition of sexual assault on campus. Investigations which take place on campus are not criminal proceedings they are civil, and as such what one campus considers sexual assault or misconduct may be very different from what a college 5 miles away does. The matter of who gets to decide on a definition is another issue entirely. However, due process is a (relatively) agreed upon concept, and violations of this are what form the basis for these court cases. In a country where the accused stand innocent until proven guilty, a disturbing trend has emerged.
On many campuses, a new attitude about due process has taken hold. Rooted in fear of losing their federal funding, colleges have leaned hard into the accuser-protecting Obama guidelines at the expense of students who stand accused. The “preponderance of the evidence” rule required college adjudicators to make high stakes decisions when they were only 50.01% certain of their answer. Students accused were not required to have access to lawyers- indeed many were discouraged from seeking legal counsel under threat of being cut off from the investigation – or the same information as their accusers. Often, students accused of sexual misconduct were not even informed of the nature of the complaint against them until punishments were imposed. In a 2015 article for the Harvard Law Review, Janet Halley, a Harvard Law Professor, describes a case at an Oregon college in which a male student was investigated for an assault that happened hundreds of miles away (he bore a passing resemblance to the young woman’s attacker), and told to stay away from a female student, resulting in the loss of his campus job and a move from his dorm. He was later conclusively found to be innocent. Like so many aspects of this issue, how to decide what restrictions should be imposed on students under suspicion is murky at best.
One of the few near unarguable tilts in the scale is seen when considering the shifts in the language used by the federal government to discuss cases of sexual assault. Where the original 2011 “Dear Colleague” letter referred to the accuser as the complainant or alleged victim and the accused as the alleged perpetrator, following federal documents in 2014 referred to the former as the survivor or victim, and the latter as the perpetrator. This diction is a slippery slope the Obama administration continuously lost their footing on. By forfeiting the alleged part of the terminology, the Obama guidelines critically endangered one of the most tangible representations of the nation’s standard of “innocent until proven guilty.”
There is no simple solution to this dilemma, no way to neatly sum up something which impacts so many people – changes the course of so many lives. The two policies discussed here are both flawed, but so are the politicians who spearheaded them; so are the parties they represent. Finding a fair way to adjudicate cases of campus sexual assault will take years and no small amount of bipartisan efforts. A solution will never be reached if party lines become rigid barriers.