Pledges of Continued Vigilance

Following Education Secretary Betsy DeVos’s announcement that she will replace Obama administration guidance on how colleges should adjudicate campus rape cases, administrators across the country have begun assuring students and sexual assault victims that their rights will be protected, while awaiting the federal department’s new orders.

DeVos pledged Thursday to end “rule by letter,” a reference to a Dear Colleague letter the Obama administration issued in 2011 clarifying how institutions should handle sexual misconduct cases under Title IX of the Education Amendments of 1972, the federal law barring gender discrimination.

The Education Department will accept comment before releasing new regulations, a more concrete decree than the 2011 guidance, DeVos said. In the interim, it will give more information to colleges and universities on addressing sexual assault procedures, which will likely come this month.

Advocates for sexual assault survivors have vocally blasted DeVos’s intentions. One, for instance, declared the secretary was making campuses “safer for rapists.” With many people uncertain of exactly how DeVos wants to alter policy, campus officials said after Thursday's announcement they were trying to tell students that they're still committed to helping those who have been assaulted, and to investigating allegations.

At George Mason University, where DeVos spoke Thursday and vilified the panels colleges and universities use to investigate and adjudicate these cases -- calling them “kangaroo courts” -- officials want to assure students they remain committed to rape prevention and training, said the university’s Title IX coordinator, Jennifer Hammat.

Some sexual assault survivors do not understand DeVos’s remarks, and may interpret them as her devaluing them, or wanting roll back their protections, Hammat said.

Hammat anticipates a campuswide email to be sent today reiterating how and where students can report sexual assault and reminding students about the services of George Mason’s counseling center.

The university will also need to inform students, faculty and staff that the trainings they underwent on Title IX still remain valid, Hammat said.

Hammat said she believes some students will react quickly to a sense that DeVos is making it more difficult to file complaints.

She said some students may react quickly to a sense that DeVos's department is making it more difficult to file complaints.

“I think you might have some of those secondary types of issues, where there’s panic,” Hammat said. “Where you’ll have people saying, ‘Do I need to do it now or forever lose my opportunity, if they’re taking this away? Was what happened to me not real; did it not count?’”

In a blistering statement, University of California System President Janet Napolitano said that President Trump’s administration aimed to “undo six years’ worth of federal enforcement designed to strengthen sexual violence protections on college campuses.”

Napolitano noted that both state and federal law are preserved. California has enacted one of the United States’ most stringent laws regulating how institutions of higher education investigate rape cases, requiring that institutions receiving state money use a lower standard of evidence -- “preponderance of evidence, used in most civil litigation involving discrimination, which requires a 50.1 percent chance that the accused is responsible -- to judge sexual assault accusations. This was also a directive in Obama’s 2011 guidance, but it was cemented into law in California, which could possibly set up a legal clash if DeVos’s Education Department mandated a higher burden of proof, such as “clear and convincing,” which many experts say requires something more like 75 percent surety the accused is responsible.

“Even in the midst of unwelcome change and uncertainty, the university’s commitment to a learning environment free of sexual violence and sexual harassment will not waver,” Napolitano said.

The day before DeVos’s speech, Michelle Johnston, president of the University of Rio Grande and Rio Grande Community College, in Ohio, said she “put on alert” her governing board and staff members about the possibilities.

Johnston was one of the college presidents invited to a “listening session” with DeVos to hear feedback on Title IX enforcement. At the July meeting, Johnston was encouraged by how intently DeVos appeared to absorb their feedback, and she said in an interview Thursday that the comment period for the coming regulations was “critical.”

Johnston said personally she would like sexual assault training requirements maintained, and that people who are uneasy about DeVos’s plans should prepare their comments.

Should substantive changes come, then Taylor Parker, a compliance officer and deputy Title IX coordinator at Ringling College of Art and Design, in Florida, intends to gather her staff immediately and discuss the new ways they would need to interact with students.

She’s particularly worried about a couple of potential shifts that she said would turn a college conduct inquiry into a courtroom -- the standard of evidence piece, which DeVos criticized on Thursday, and mandating that students be allowed a lawyer during the hearing, as some believe DeVos would like to require. Federal rules allow an adviser to be present with a student.

Parker likened it to a lawyer being present if an elementary school-age children was called to the principal’s office. And institutions would need to spend massive amounts of money hiring employees trained to the same legal background as a lawyer, she said.

“It’s more important than ever for people involved in this work to do things, not because they’re legally required to do it, and not do things that are illegal, but what I’m saying is -- to do things that on a very basic human level are the right thing. Go for it,” she said.

But Brett Sokolow, president of the National Center for Higher Education Risk Management, called NCHERM, which advises universities, said that despite the hullabaloo, he doesn’t anticipate a major shift in university practices without new regulations. A small percentage of institutions historically disregarded Title IX, but most will uphold the infrastructure required both by the law and the 2011 guidance.

Administrators he spoke with were “irate” in the wake of DeVos’s comments Thursday, and Sokolow said most don’t have a willingness to change, though the “writing has been on the wall” about the administration valuing due process protections, a point he said DeVos hammered in her speech.

“Due process has been legal requirement on colleges forever -- 50 years, 60 years. The fact that we’re just getting around to this in sexual misconduct is absurd,” he said. “I think the ability to be transparent is going to become more and more critical. Students need to be fully informed.”