Cam­pus sex as­sault rules scru­ti­nized

Ed­u­ca­tion sec­re­tary dives into the de­bate over how to im­prove the widely crit­i­cized guide­lines drawn up un­der Obama.

Los Angeles Times - - THE NATION - By Lau­ren Rosen­blatt lau­ren.rosen­blatt@la­ Twit­ter: @LRosen­blatt_

WASH­ING­TON — Af­ter barely sur­viv­ing her con­fir­ma­tion bat­tle and fac­ing spo­radic protests dur­ing vis­its to schools, Ed­u­ca­tion Sec­re­tary Betsy DeVos could hardly have teed up a more fraught, emo­tional and di­vi­sive is­sue to launch her ten­ure: cam­pus sex­ual as­sault.

Though few peo­ple were happy with the Obama ad­min­is­tra­tion’s ef­forts to prod col­leges and uni­ver­si­ties to more ag­gres­sively com­bat and in­ves­ti­gate sex­ual as­sault on cam­pus, there is lit­tle agree­ment on how to make things bet­ter.

Al­leged sur­vivors, ac­cused per­pe­tra­tors and even school of­fi­cials all com­plain that the cur­rent sys­tem isn’t work­ing.

DeVos raised eye­brows with her out­reach last month to stu­dents who say they have been falsely ac­cused of as­sault. Th­ese stu­dents, mostly men, say the Obama-era rules have pushed schools to cre­ate a process that is stacked against them.

Cam­pus ad­min­is­tra­tors say the guide­lines cre­ated un­re­al­is­tic ex­pec­ta­tions, forc­ing them in ef­fect to take sides even in cases where the facts are un­clear, and to per­form a pros­e­cu­to­rial role, of­ten with­out proper train­ing.

Even vic­tims ad­vo­cates say the cur­rent sys­tem has fallen short, lead­ing some schools — ea­ger to pro­tect their rep­u­ta­tions and avoid the manda­tory re­port­ing and in­ves­ti­ga­tory process trig­gered by the rules — to dis­cour­age stu­dents from re­port­ing sex­ual as­saults.

Now there’s a vir­tual race to gain DeVos’ ear as she gath­ers in­for­ma­tion for what might be an over­haul of the Obama-era rules.

Pres­i­dent Obama re­leased a se­ries of guide­lines in 2011 and 2014 de­tail­ing how col­leges and uni­ver­si­ties should han­dle cases of sex­ual as­sault. Fail­ure to com­ply with the rules — which pro­vided an up­dated in­ter­pre­ta­tion and en­force­ment of the anti-dis­crim­i­na­tion rule known as Ti­tle IX — may re­sult in a re­view by the Ed­u­ca­tion De­part­ment’s Of­fice for Civil Rights and a loss of fed­eral fund­ing.

Al­though the guid­ance helped in­crease at­ten­tion and re­sources de­voted to the is­sue, vic­tims groups say some prob­lems per­sist, in­clud­ing dif­fi­culty in reach­ing a school’s Ti­tle IX co­or­di­na­tor, lack of proper no­tice or in­for­ma­tion re­gard­ing an in­ves­ti­ga­tion and some­times a re­luc­tance to con­front the prob­lem.

“[We] still see this knee­jerk re­ac­tion that there’s some­thing wrong with the stu­dent who ac­tu­ally made the com­plaint,” said Fatima Goss Graves, pres­i­dent of the Na­tional Women’s Law Cen­ter.

She and oth­ers worry that DeVos may scale back the fed­eral rules or make the com­plaint process more bur­den­some for ac­cusers.

“The last thing we need is for DeVos and her point per­son for civil rights [As­sis­tant Sec­re­tary Candice Jack­son] to get out there and start say­ing things that im­ply you can come for­ward but you’re go­ing to face a re­ally big moun­tain try­ing to get any­thing done,” Cal­i­for­nia Atty. Gen. Xavier Be­cerra said in an in­ter­view. He and 19 other at­tor­neys gen­eral signed a let­ter in July urg­ing DeVos to main­tain the Obama-era guide­lines.

“The shame that comes from be­ing a vic­tim and hav­ing noth­ing be­ing done to the per­pe­tra­tor would drive peo­ple back into the closet,” he said.

Jack­son came un­der fire in July when she said in a New York Times ar­ti­cle that 90% of ac­cu­sa­tions “fall into the cat­e­gory of ‘we were both drunk, we broke up.’” She later apol­o­gized for the state­ment, but ad­vo­cacy groups say her re­marks fueled con­cern that the de­part­ment is not com­mit­ted to pro­tect­ing vic­tims.

Their con­cerns with the cur­rent ad­min­is­tra­tion started early in DeVos’ ten­ure when she re­fused to guar­an­tee she would main­tain the cur­rent guide­lines and signed off on re­scind­ing Ti­tle IX pro­tec­tions for trans­gen­der stu­dents.

On the other hand, those who are ac­cused of sex­ual as­sault say they are bat­tling a sys­tem that seems to pre­sume they are guilty. They com­plain they are of­ten kept in the dark about what in­for­ma­tion an in­ves­ti­ga­tor has and are un­sure who can as­sist them in de­fend­ing them­selves.

They are hope­ful DeVos will raise the stan­dard of ev­i­dence now used by school ad­min­is­tra­tors from one that re­quires a “pre­pon­der­ance of ev­i­dence” — mean­ing it is more than 50% likely that sex­ual vi­o­lence oc­curred — to some­thing sim­i­lar to “clear and con­vinc­ing ev­i­dence.”

They also want to re­move what some cam­pus of­fi­cials say is pres­sure to find some­one re­spon­si­ble for the as­sault. The rules say a school should make a rec­om­men­da­tion one way or the other within 60 days. That’s of­ten dif­fi­cult in cases in which even po­lice can’t make a de­ter­mi­na­tion due to a lack of ev­i­dence and wit­nesses.

“Be­fore the Of­fice for Civil Rights got re­ally ramped up on this is­sue, we were re­ally pre­cooked to make er­rors in the di­rec­tion of no re­spon­si­bil­ity,” said Janet Hal­ley, a Har­vard Uni­ver­sity law pro­fes­sor who pub­licly crit­i­cized her school’s pol­icy. “We needed to change. But now we’ve passed the mid­point where we’re try­ing to be fair to all stu­dents.”

In some ways, the de­part­ment un­der DeVos has al­ready re­laxed the Obama ad­min­is­tra­tion rules. Jack­son has an­nounced that the de­part­ment will no longer be re­quired to au­to­mat­i­cally re­view three years of a school’s data and fil­ings on sex­ual as­saults af­ter it re­ceives a com­plaint of mis­han­dling a case.

Higher ed­u­ca­tion of­fi­cials said fear about such fed­eral re­views has led to con­cerns about be­ing la­beled as a school that doesn’t take sex­ual as­sault se­ri­ously.

Many schools say they have been con­fused by the cur­rent guid­ance, ac­cord­ing to Dana Scaduto, gen­eral coun­sel at Dick­in­son Col­lege in Penn­syl­va­nia.

She sug­gested that the gov­ern­ment stop fo­cus­ing on a “one size fits all” so­lu­tion and rec­og­nize that “schools need to have the same re­spon­si­bil­ity for fairly and im­par­tially re­solv­ing sit­u­a­tions, but that might look dif­fer­ent on dif­fer­ent cam­puses.”

Some ar­gue that cam­pus ac­tivism and pres­sure from stu­dents, who are largely cred­ited with bring­ing at­ten­tion to the is­sue dur­ing the Obama ad­min­is­tra­tion, will en­cour­age col­leges and uni­ver­si­ties to main­tain cur­rent prac­tices re­gard­less of what DeVos does.

Brett Sokolow, ex­ec­u­tive di­rec­tor of the Assn. of Ti­tle IX Ad­min­is­tra­tors, which pro­vides pro­fes­sional guid­ance to cam­puses, rec­om­mends that schools “stay the course.”

“Ti­tle IX has a 45-year tra­jec­tory. Dur­ing that time, it has waxed and waned,” he said. “This is a pe­riod where for four or eight years it’s go­ing to wane some­what in fed­eral em­pha­sis.”

Alex Bran­don As­so­ci­ated Press

BETSY DeVOS spoke last month with stu­dents who say that they’ve been falsely ac­cused of sex­ual as­sault and that the cur­rent process is stacked against them.

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