U.S. Secretary of Education Betsy DeVos started out strong by condemning sexual violence in her statement on Title IX at George Mason University last week: “[S]exual misconduct [is] reprehensible, disgusting, and unacceptable. ... One assault is too many.”
The landmark civil rights law forbids sex-based discrimination, including sexual harassment and assault, in all federally funded educational institutions, including public schools and nearly all colleges and universities. It seems uncontroversial. Of course, schools should take all reasonable steps to prevent and respond to sexual assault against their students. Not so for DeVos.
She began her speech by discussing the horrific ways in which survivors of sexual violence lose their right to an education free from discrimination. But she quickly refocused her remarks on those accused of sexual assault. Indeed, the secretary of education spent significant time meeting with this population in the form of “men’s rights” groups. These groups allege that U.S. education has become anti-male and that anti-sexual assault activism has led to witch hunts of men on campus. Such criticism, of course, ignores the fact that too many men are themselves victims of sexual assault and also benefit greatly from Title IX. Ultimately, DeVos concluded that the guidance from the Obama administration was harmful to both survivors and accused students.
In 2011, the Obama administration published a key guidance known as a Dear Colleague Letter (DCL) that explained to schools how to handle sexual violence in compliance with Title IX. The guidelines included provisions that schools must have a designated Title IX coordinator, offer sexual misconduct education and prevention programs, disseminate a notice of nondiscrimination, and adopt and publish a grievance procedure for sexual misconduct.
Most controversially though, this letter instructed schools to adopt a “preponderance of the evidence” standard for evaluating all claims of sexual misconduct. This means that, like in any similar civil legal proceeding, the claim would be decided based on which party offers more compelling evidence. If a school finds that a person more likely than not perpetrated sexual misconduct, then that school is required to respond promptly and equitably to that finding. Some argue that even though the preponderance standard is ubiquitous in our legal system, it is unfairly biased against the accused and encourages schools to make hasty decisions based on claims of sexual assault that may be fabricated.
In response to these criticisms, DeVos announced that she would rescind this critical guidance. Though she offered no specific alternatives, she made vague references to a proposal that instead of requiring schools to investigate and adjudicate claims of sexual misconduct, there would be “regional centers” responsible.
Although DeVos can pretend that her action will trigger a change in how schools handle sex discrimination, our other laws say otherwise. Congress passed two key pieces of legislation in the last decade: the Campus Sexual Violence Elimination Act and a reauthorization of the Violence Against Women Act. These laws cannot be overturned or withdrawn by any executive, and they codify much of the substance of the 2011 guidance.
Under these two laws, all schools must conduct fair and transparent hearings based on clear policies. Both the victim and the accused student are able to bring the adviser of their choice to the hearings, including an attorney. And all parties must be provided with a written outcome letter promptly after the hearing. This makes DeVos’ proposal to remove responsibility from schools in addressing sexual misconduct irrelevant because that would probably violate federal law. Though her speech was an offensive gesture, it was largely symbolic and most likely changes little in the way schools operate.
As a survivor of sexual assault, I found DeVos’ statement to be extremely disappointing. After years of work developing a powerful, grassroots, national movement to hold our schools accountable, survivors watched the secretary of education undermine the hard-earned advances we made in tandem with our politicians, with our government, and with our schools. Although her words aren’t likely to change practice, they exemplify the Trump administration’s work to push women, people of color, and LGBTQ individuals to the margins of society with fewer rights and less recourse.
But these policies will not prevail in accomplishing these goals if we refuse to allow them. Our community must continue to educate students, faculty, and staff about their rights. Our schools, from pre-kindergarten to college, must firmly state that they will stand up for survivors of sexual assault and insist that, regardless of any guidance, all students have the right to an education free from discrimination.
Hope Brinn is a graduate of Swarthmore College, attends the University of Michigan Law School, and appeared in the documentary “The Hunting Ground.”