'A Bad Step Backwards': Assault Survivor Advocates React to Proposed Overhaul of Obama-Era Protections

On Thursday, Education Secretary Betsy DeVos announced a partial overhaul of Obama-era guidelines for how colleges and universities must address incidences of sexual harassment and assault, saying, “the system established by the prior administration has failed too many students.”

Under the Obama administration, the Department of Education’s Office of Civil Rights raised sexual harassment and assault into a national issue, prompting universities and colleges to crackdown on sexual assault. While the Obama-era directives were not perfect, they helped elevate the voices of survivors that perviously went ignored, and served as an initial reform on handling sexual assault cases across the country. But with the election of Donald Trump, who has bragged about sexually assaulting women, and the appointment of DeVos, who will not protect students from discrimination, advocates of survivors have feared that the Trump administration would curb rights of sexual assault survivors. “I think that today’s announcement, while not a full recision of current guidance, is a bad step backwards for survivors,” said Jess Davidson, managing director of End Rape on Campus in an interview with Jezebel.

“The era of rule by letter is over,” DeVos said in her speech, referring to the 2011 Dear Colleague Letter (DCL), an 18-page memo about how higher education institutions should be enforcing Title IX protections against sexual harassment and assault. “Through intimidation and coercion, the failed system has clearly pushed schools to overreach,” she said.

DeVos delivered her speech at George Mason University in Virginia months after she met with survivors of sexual assault, the wrongfully accused, and university administrators. While did not propose any specific reforms, she announced that the department will overhaul the Obama-era guidelines as it searches for “a reframing.”

“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,” she said. “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. I’ve met them personally. I’ve heard their stories, and the rights of one person can never be paramount to the rights of another.”

DeVos’s speech ignores, however, the gendered reality of sexual harassment and assault, of which 90 percent of adult victims are women, that an estimated one in five women are sexually assaulted in college, that only between two and eight percent of rapes accusations are false, that most rapes to go unreported and the majority of rapists remain free.

“It shows this false equivalency” to compare a rape survivor’s trauma with that of the wrongfully accused, says Davidson. “She really does not understand the survivor’s experience, the neurobiology of trauma, and it’s lasting impact on students, and that’s a problem because students that are experiencing that lifelong impact of trauma and are trying to have equal access to their education afterward, they really need government officials who understand the impact in order to help them get the accommodations that give them equal access to education.”

Instead, DeVos criticized existing definitions of harassment and assault as too “broad” and claimed that “any perceived offense” can lead to a Title IX investigation. “But if everything is harassment, then nothing is,” she said.

“In order to ensure that America’s schools employ clear, equitable, just and fair procedures that inspire trust and confidence, we will launch a notice-and-comment process to incorporate the insights of all parties in developing a better way,” DeVos continued. “We will seek public feedback and combine institutional knowledge, professional expertise, and the experiences of students to replace the current approach with a workable, effective, and fair system.”

Though DeVos favored public feedback, she also outlined specific reports and criticisms, including one report by former prosecutors that blamed sexual assault activists for creating a polarizing atmosphere at one college campus, and an open letter from Harvard’s Law School faculty that bemoaned the school’s harassment policy as harsh to the accused. DeVos also voiced support for Virgina’s pilot regional center model, which creates a voluntary, opt-in center that unites law enforcement with school administrators for cases deemed criminal.“These are only a few examples that allow for a more effective and equitable enforcement of Title IX,” she said. “Our interest is in exploring all alternatives that would help schools meet their Title IX obligations and help their students.”

While it’s fair to point out that there are flaws with current handling of sexual assault and harassment cases, DeVos is conflating policy with enforcement, says Davidson. “I am disappointed with the language and the framing that DeVos used when explaining the issues that face the Title IX process. It showed a clear, fundamental misunderstanding of survivors’s experiences and sometimes even of Title IX.”

“She listed examples of schools making grave procedural errors as though they were the result of the guidance, instead of directly contrary to the guidance,” said the National Women Law Center’s Alexandra Brodsky, noting that DeVos listed examples where universities have prohibited students from speaking about proceedings or denied them access to their records. “The DCL doesn’t mention [gagging students], so she seems to be attributing places where schools are breaking the law to the law—even though the obvious answer is to enforce the law.” The DCL also requires schools to allow students to access their records.

Brodsky also says it’s unclear from the announcement what the Department is seeking “notice and comment” on, specifically. “From DeVos’s speech, I think it’s clear that they will use that as an opportunity not to genuinely engage the stakeholders representing all viewpoints, but to pursue their anti-survivor agenda.”

“Also, the department is right now in the middle of notice and comment on its regulation, and the vast majority of comments that it’s received address Title IX sexual assault guidance,” she explained. “They are moving forward with their attack on Title IX and the guidance despite all of the support that they’ve heard in public comment, which gives us little reason to think that they will engage in good faith in this upcoming process; that they are genuinely receptive to hearing feedback that doesn’t align with their agenda.”

“If the Department refuses to hold schools accountable for Title IX, students’s only option is to turn to the court,” Brodsky said, “And that’s inaccessible for a lot of people.”

“I think that this is a clear signal that the Department is not only not invested in protecting survivors’s rights, but it’s hostile to them,” Brodsky said of the announcement. “And it terms of what that means for enforcement tomorrow, DeVos’s announcement doesn’t change the law. She doesn’t have the power to make that kind of change through a speech, but I think it’s a further signal that students have good reason to think that the Office for Civil Rights isn’t doing its job.”

Clarification: The DCL requires that schools to allow students to access their records, and doesn’t bar them from discussing investigations. This article has been amended to reflect that.