By Phoebe Suy | Staff Writer
Secretary of Education Betsy DeVos announced on Thursday her plans to change Obama-era guidelines that detailed how schools should conduct Title IX investigations, claiming both survivors and accused students lose in the current system.
The policy change will affect universities across the nation, including Baylor, who have recently worked to come into compliance with Title IX.
“The era of ‘rule by letter’ is over,” DeVos said in her speech at George Mason University.
DeVos is referencing the Department of Education’s 2011 “Dear Colleague Letter” that established strict guidelines for how schools should handle allegations of sexual misconduct.
Among other reinforcements, the letter lowered the burden of proof for sexual assault from “clear and convincing” to “preponderance of the evidence,” meaning Title IX investigations need only prove it is more likely than not that sexual harassment or violence occurred. That is, they must prove there is a 51 percent chance sexual assault occurred.
“We know this much to be true: one rape is one too many,” DeVos said. “One assault is one too many. One aggressive act of harassment is one too many. One person denied due process is one too many.”
While uncomfortable, DeVos said the conversation about campus sexual assault is necessary because the current system isn’t working.
“Here is what it looks like: a student says he or she was sexually assaulted by another student on campus. If he or she isn’t urged to keep quiet or discouraged from reporting it to local law enforcement, the case goes to a school administrator who will act as the judge and jury,” DeVos said.
Sometimes the accused students aren’t informed of the allegations before a decision is given, Devos said, and if there is a hearing, the survivor and the accused may or may not be allowed legal representation.
“And now this campus official—who may or may not have any legal training in adjudicating sexual misconduct—is expected to render a judgement. A judgement that changes the direction of both students’ lives,” DeVos said.
In her speech, DeVos shared the experiences of some survivors and accused students who said their cases were mishandled under the current system. One survivor in particular saw her rapist go free, DeVos said. While the university found him responsible, the failed system denied him due process. He then sued the school and walked away free after several appeals.
“This is the current reality,” Devos said. “There must be a better way forward.”
Colorado attorney John Clune, whose practice specializes in Title IX and campus sexual assault and is an advisory board member of the Association of Title IX Administrators, said there is a lot of uncertainty regarding what the Department of Education is going to end up doing.
“For people that work in Title IX and in sexual assault, there’s a fundamental lack of trust in this administration,” Clune said. “I think the reaction is one of fear that given the kind of sexually hostile attitudes of the president, they’re expecting a weakened version of campus safety to come out as a result.”
Clune said he believes it is important for everybody to be treated fairly in the investigation process, both the victims of sexual assault and the accused. He said there is no downside to ensuring new guidelines are balanced and fair.
While he noted Devos’ remarks were not overly alarming, he said they could “lead to a process where they make the campus judicial procedures much more difficult for offenders to be held accountable and it’s going to lead to both more sex offenses on campus and more women leaving the university. “
Ultimately, Clune emphasized some of the problems and examples DeVos spoke of were poor representations of the Dear Colleague Letter.
“They have nothing to do with the Dear Colleague Letter. Those are issues that happen when schools are just doing a bad job of implementing Title IX and their school disciplinary proceedings,” Clune said.
DeVos’ comments undermine the tremendous amount of work and significant improvements schools around the country have made, Clune said.
Baylor in particular has taken a number of significant measures as the issue of sexual assault has been, and continues to be, brought to the surface. In May, the Board of Regents announced the structural completion of Pepper Hamilton’s 105 Recommendations. Pepper Hamilton law firm conducted an independent investigation of Baylor’s response to and compliance with Title IX and offered the recommendations as a road map for the university.
“Today’s announcement does not change the significant commitment Baylor University has made to provide a safe and secure educational environment for our campus community,” President Linda Livingstone said in response to DeVos’ speech. “We will remain steadfast in our aim to be a model institution for the prevention of and response to sexual violence.”
Looking forward, Secretary DeVos said she is seeking public feedback and institutional knowledge, professional expertise and students’ experiences to create a fair and effective system.
One idea both DeVos and Clune consider promising is the “Regional Center” model proposed by former prosecutors Gina Smith and Leslie Gomez. DeVos said a number of states are exploring this model today.
“The model sets up a voluntary, opt-in Center where professionally-trained experts handle Title IX investigations and adjudications,” Devos said. “The Center cooperates with local law enforcement and has access to resources to collect and preserve forensic evidence, facilitate — but never require — criminal prosecutions and apply fair investigative techniques to gather and evaluate all relevant evidence to determine whether sexual misconduct occurred.”
DeVos said this specific model allows educators to do what they do best — educate.
“The one thing that we want to see happen is whatever system is in place, it needs to work well or survivors of sexual violence aren’t going to report,” Clune said.
DeVos’ speech was live-streamed on the US Department of Education’s Facebook page.
