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DeVos considers whether to roll back Obama-era approach to campus sexual assault

Wed., July 12, 2017, 7 p.m.

In this June 6, 2017, file photo, Education Secretary Betsy DeVos testifies on Capitol Hill in Washington before the Senate Appropriations Committee, Labor, Health and Human Services, Education, and Related Agencies Subcommittee hearing on the fiscal year 2018 budget. (Susan Walsh / Associated Press)
In this June 6, 2017, file photo, Education Secretary Betsy DeVos testifies on Capitol Hill in Washington before the Senate Appropriations Committee, Labor, Health and Human Services, Education, and Related Agencies Subcommittee hearing on the fiscal year 2018 budget. (Susan Walsh / Associated Press)

Education Secretary Betsy DeVos has refrained from saying whether her department will continue or reject the Obama administration’s controversial approach to cracking down on campus sexual violence. Now, as she mulls that question, she is set to meet Thursday with advocates on all sides of the issue – college administrators, rape survivors and students accused of assault.

Assault victims and their allies worry that the meetings are pro forma, a mere exercise in advance of an announcement that the Trump administration plans to reverse course on federal guidance that played a key role in forcing colleges to do more to protect survivors of sexual violence. Advocates for the accused, meanwhile, see an opening to do away with an approach that they argue has led colleges to conduct biased investigations that label innocent students as rapists.

“We’re not interested in getting rid of civil rights,” said Cynthia Garrett, co-president of Families Advocating for Campus Equality (FACE), a group founded by three mothers who said their sons were falsely accused of sexual misconduct on campus. “What we do oppose,” she said, is the Education Department’s “coercive and punitive attitude toward schools, because we believe it drove schools to decide that it was easier to find a student guilty and there would be fewer repercussions than finding a student not responsible.”

Assault survivors and advocates are planning to rally outside the Education Department on Thursday morning in advance of the meetings, calling on DeVos to stay the course on an approach they say has pushed colleges to take assault allegations seriously and encouraged victims to come forward. They also urge her to hold more than one meeting with survivors before making a decision.

“We’re glad we’re finally going to be meeting with the secretary, but 90 minutes is not enough for her to understand the survivor experience,” said Jess Davidson of End Rape on Campus.

At issue is guidance the Education Department issued in 2011 to outline how K-12 schools and colleges must handle sexual assault allegations. Republicans assailed the guidance as an executive overreach and a unilateral writing of new law, while Obama administration officials defended it as a clarification of schools’ existing obligations under the federal law known as Title IX, which prohibits sex discrimination at federally funded schools.

In the aftermath of the guidance and the subsequent national focus on campus rape, the number of sexual violence cases under investigation by the Education Department’s Office for Civil Rights grew quickly. Fifty-five colleges were under investigation in May 2014, when the Education Department first named institutions with open cases; as of July 12, there are 344 sexual violence cases under investigation at 242 institutions.

Survivors of assault, who had been pressing colleges to confront what they deemed campuses’ rape culture, greeted the federal guidance as an important step toward ensuring disciplinary consequences – including expulsion – for students found to have committed an assault. Critics said the federal guidance saddled schools with investigations they were ill-equipped to resolve fairly.

Particularly controversial was the notion that the outcome of investigations should rely on the preponderance of the evidence in each case to determine whether an assault had occurred. Critics argue that bar is too law, and plan to argue in Thursday’s meeting with DeVos that the more rigorous standard of “clear and convincing evidence” should have to be met before finding a student responsible for assault. They also want to see students accused of assault guaranteed to support services and to confidential advocates who can help them navigate the investigation and hearing process.

Some also want to see colleges stop investigating sexual assault allegations, deferring instead to law enforcement agencies. On many campuses, students, administrators and faculty members sit on panels that adjudicate assault cases. “It’s just crazy,” said Mike Allen, a Cincinnati attorney who represents accused students. “That’s the only way I know how to say it.”

Survivors and their allies oppose forcing students to go through the criminal justice system, arguing that it exists for an entirely different purpose than campus due process proceedings, which are meant to ensure that students have access to education – not to put anyone in jail.

“Many survivors, they just want to finish their degree, and take a class without someone who raped them,” said Davidson. “They shouldn’t have to go through a five-year trial before that can happen.”