WASHINGTON -- Education Secretary Betsy DeVos didn’t announce plans to rescind guidance from the Obama administration Thursday after a full day of closed-door meetings about Title IX policy. But she hinted that changes are coming.
In a 15-minute meeting with reporters, DeVos said there are substantive legal questions to be addressed regarding evidentiary standards for findings of sexual assault or harassment on campus, due process, and public input on policy.
“There are some things that are working. There are many things that are not working well,” she said in the Q&A session. “We need to get this right.”
DeVos met with reporters Thursday after back-to-back-to-back meetings with victims’ advocacy groups, organizations concerned with the rights of the accused, and campus representatives. The involvement of "men’s rights" organizations in that second of the three meetings led to serious backlash days before the Title IX summit even began. And it fueled skepticism among advocates for survivors of sexual assault that the Department of Education under DeVos won’t be committed to enforcing Title IX protections.
Comments from Acting Assistant Secretary for Civil Rights Candice Jackson to The New York Times yesterday (which she later walked back) added to the backlash.
Jackson told the Times that 90 percent of campus assault allegations "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 she just decided that our last sleeping together was not quite right.’” She apologized afterward, saying the remarks were "flippant" and that she believes all assault allegations should be taken seriously.
Laura Dunn, the founder and executive director of SurvJustice, a victims' advocacy group that took part in meetings Thursday, said in a statement that the group was "deeply troubled that [Jackson's] apology does not admit how rare false reports are or admit how widespread the issue of campus sexual violence actually is based on research."
Dunn called on Jackson to acknowledge research indicating the rarity of false reports of assault and to pledge to not promote a narrative of false rape accusations.
DeVos declined to discuss her thoughts on Jackson’s comments but said that current Title IX policy has not worked “in too many ways” and that the department needs to get it right. She made it clear that she would seek to do that partly by listening to a broad range of voices, including many who she says have not been consulted by the department extensively before.
That apparently includes some voices that many advocates consider fringe groups and bullies of sexual assault survivors. Among those groups criticized by advocates were the National Coalition for Men and Stop Abusive and Violent Environments (SAVE). DeVos didn’t address the criticism of those groups’ track records by advocates or discuss whether their involvement in talks would hurt her credibility on Title IX issues. But she said listening to all parties and “all sides of the issue” is an important part of the process.
“I’m really committed to listening and getting as much input as possible -- as we possibly can,” she said.
A department spokeswoman added that the groups were present because they were the organizations the accused students had found help from and that their involvement shouldn't necessarily be seen as an endorsement by DeVos.
Although many were frustrated with the role of those groups, advocates still took the opportunity to meet with DeVos Thursday and to help survivors of assault and harassment share their stories with the secretary. Neena Chaudhry, director of education and senior counsel at the National Women’s Law Center, said the meeting included powerful stories from survivors of assault. But participants also urged DeVos to meet with other survivors across the country, as officials from the Obama administration did.
“We all collectively urged her to really go around the country and do a national listening tour, to hear from survivors in different regions of the country, at different types of schools,” Chaudhry said.
Advocates also urged DeVos not to change current Title IX guidance. Some of the biggest questions about department policies on campus sexual assault going forward involve whether DeVos will rescind 2011 guidance from the Obama administration or change the standard of evidence used in assault cases. In that guidance, Obama officials pushed campus administrators to more strongly enforce protections and provided clarifications on how they should do so.
The guidance also made clear that the standard for finding sexual harassment or assault took place on campus should be a “preponderance of evidence” -- meaning that it is more likely than not that a crime occurred. Advocates are concerned that DeVos may raise the standard of proof for victims to demonstrate that they suffered abuse on campus. Many feared that after President Trump's election, the administration would allow colleges to return to whatever standard they found appropriate.
Jackson, meanwhile, has made clear that a top concern for her is how students -- most of them male -- are treated when they are accused of assault.
She also received a warm response from attorneys for colleges and universities last month when she told a gathering in Chicago that the previous administration had fallen into a pattern of overreach and had often set out to punish or embarrass institutions.
Before that, one of several documents leaked from her office to media outlets fueled questions from advocates of transgender equality about whether her office would push for standard enforcement of protections across regional offices. The department itself has said that memo was issued to remind field investigators that they should find every way in current law and regulation to help students resolve their complaints.
DeVos earlier this year withdrew 2016 guidance from the Obama administration making clear that students should have access to bathroom and changing facilities matching their gender identity. Asked by reporters about her thinking on whether sex discrimination under Title IX applies to gender identity, DeVos simply said all students deserve protection.
“All students means all students,” she said.
DeVos said her department “is not going to make laws.” Instead, she said it’s time for Congress to weigh in on the issue. There is very little chance, however, that the current Congress will amend civil rights laws to provide more protection for transgender students.
Reactions to Discussions
Terry Hartle, senior vice president for government and public affairs at the American Council on Education, said the discussion between DeVos and campus leaders, which he attended, focused on how colleges could do a better job preventing sexual assault and then investigating and responding to it when occurs. And the discussions dealt with how the Office for Civil Rights at the department could help campuses do a better job.
Hartle said there was broad agreement that the 2011 Dear Colleague letter from the Obama administration was unclear or ambiguous in some ways that often leave campus leaders unsure if they are in compliance with guidelines from the department.
“There was no disagreement of a clear, unambiguous responsibility to provide a safe campus. And that includes safety against sexual assault,” he said. “What campuses have are a lot of uncertainties and questions about what’s required under the guidance and what’s not required and how much flexibility they have to develop or tailor the process to meet the needs of the different case that might arise.”
But Hartle said there was “absolutely, positively no discussion” of rescinding the 2011 guidance among the campus representatives in the room.
Chris Perry, a spokesman for SAVE, said students accused of assault had a “powerful and impactful” talk with DeVos. While some students in that session were accompanied by representatives from SAVE, others were joined by the National Coalition for Men and Families Advocating for Campus Equality.
“What we would like her to take from it is the current manner in which these cases are being handled,” Perry said. “There’s just a real lack of consistency. Unfortunately some of these college have been overwhelmed with their responsibilities.”
While SAVE and the coalition have come in for criticism from victims' advocates, Perry said he wasn’t sure where that criticism of his group originated. He denied, for instance, that SAVE has ever encouraged blaming or harassing victims of sexual assault -- a charge made by some advocates.
“We’re certainly not making any effort to roll back protections for victims,” Perry said. “Everybody wants to be treated respectfully, to be treated fairly, and that’s the ultimate goal.”
As one group of survivors and advocates met with DeVos Thursday morning, other organizations pushing for strong Title IX protections held a rally outside the department’s headquarters. Dozens gathered for much of the morning to hear stories from assault survivors, as well as comments from elected officials including Representative Jackie Speier, a California Democrat, and Senator Kirsten Gillibrand, a New York Democrat.
And they made clear they were dissatisfied both with Jackson’s comments and with the involvement of groups they said had questionable track records in the policy process.
“These groups have latched on to this fair-process narrative in order to effectively discredit survivors,” said Alyssa Peterson, a policy and advocacy coordinator at Know Your IX. “Unfortunately, that line was picked up by the official responsible for enforcing Title IX.”
Peterson was raped as a sophomore at Georgetown University in 2011. She said she experienced depression and struggled with classes afterward without knowing what resources were available to her. But after the Obama administration’s 2011 guidance was issued, campus organizers pushed for reforms on campus. They were able to get a crisis counseling hotline staffed over weekends for students, Peterson said. And more outreach was added to make students aware of resources like the D.C. Rape Crisis Center.
She said it’s important that those federal guidelines remain in place so that campuses know they have the ability -- and the responsibility -- under the law to provide those resources to students. And Know Your IX wants DeVos to commit to more meetings to hear the stories of assault survivors. The group plans next week to send a request to DeVos for meetings with additional students who experienced assault.
“If she doesn’t accept that request, we will know her commitment to meeting with survivors is not real,” Peterson said.