On January 25th, three civil rights organizations filed a lawsuit against Education Secretary Betsy DeVos. Arguing that Devos’ Title IX guidance policy holds discriminatory stereotypes about women and creates unsafe environments that are not conducive to learning, The Victim Rights Law Center, SurvJustice, and Equal Rights Advocates are ultimately asking that the guidance be rescinded as unlawful.
Though this suit is the first legal complaint, sex crime and domestic violence advocacy agencies nationwide have expressed concern about both the drafting of the new policies, and the documented views of those responsible for its implementation. For example, Candice Jackson, Acting Civil Rights Chief in Trump’s Department of Education, announced during her tenure that “many girls and women who report sexual harassment misunderstood a harmless romantic advance and that those who report sexual violence often are either lying or have regret about a consensual sexual encounter.” She is also frequently noted for stating, “[w]hen everything is harassment, nothing is.”
Jackson’s statements reflect a cultural phenomenon impacting survivors across demographics and environments – especially on college campuses, where perpetrators and survivors often share friends, learning environments, and social spaces. In this environment, students tend to rally against survivors of sexual assault because rape is a harsh reality to accept. It is difficult to believe that a person you know could have raped someone, while it is much easier and less emotionally draining to think that a survivor lied about being raped. This presumption is acted upon by classmates of survivors everywhere, as well as by school and university administrators, coworkers and even politicians. The distrust demonstrated toward survivors is detrimental to their mental health and jeopardizes their ability to receive justice and protect themselves.
Though negative peer responses and retaliation against survivors went largely unchecked for decades, the Obama administration took aim at improving conditions for reporting survivors. In 2011, the Department of Education put new standards in place to work toward fairer treatment of survivors who come forward in their schools and colleges. The 2011 Dear Colleague Letter and 2014 Question and Answer Document released by the Obama Administration provided schools with specific protocols for responding to sexual discrimination, harassment, or assault perpetrated by members of the student body or by the staff. The regulations required schools not only to investigate allegations, but to adopt the “preponderance of the evidence” standard of proof when responding to a sexual assault allegation from a student. Using this standard, the majority of evidence presented had to point to the conclusion that the assault did, in fact, occur. Before these new standards were adopted, most schools required a much higher standard of proof, in most cases unrealistically high. For survivors on campus, the 2011 and 2014 Title IX guidance was a huge improvement over previous standards. These new regulations demonstrated less distrust of victims and provided more likelihood that they would be protected in settings where perpetrators and retaliating peers may continue to harm them.
Additionally, the 2011 and 2014 Title IX guidance discouraged schools from relying solely on investigations of criminal conduct by law enforcement authorities to resolve Title IX complaints. This is because, for numerous reasons related to fear of retaliation, confusion about which system to report to, the impact of trauma on the brain, and other factors, only approximately 310 of every 1,000 rapes is reported to police. Even when reported, the criminal justice system often fails to protect those who have been sexually assaulted. Out of those 310 reported rapes, only seven cases end in a felony conviction, and just six end in the perpetrator receiving a prison sentence. Because of ignorance regarding sexual assault dynamics, it is incredibly difficult to achieve a rape conviction. Therefore, the vast majority of perpetrators do not face consequences. In other words, the criminal justice system cannot be the sole investigator and enforcer for schools in which sexual harassment and assault has occurred. There must be standards put in place to help the 99.4% of victims whose perpetrators walk free. This need was acknowledged by the 2011 and 2014 standards, which attempted to provide some protection for survivors outside of the criminal justice system.
This progress came to a crashing halt, however, in September 2017, when DeVos officially rescinded the 2011 and 2014 guidance issued by the Obama-era Department of Education. Upon rescission, the current administration released interim guidelines detailing how schools should respond to sexual violence complaints. These guidelines will govern campus procedures until Devos’ team develops and issues final guidance. Unfortunately, these interim guidelines are extremely vague. In stark contrast to the Obama-era guidelines designed with predictability and neutrality in mind, the interim guidelines give schools many choices of how to respond to sexual assault. This strategy may sound reasonable until one considers that the 2011 Dear Colleague Letter was created because students were suffering from sex-based discrimination — including sexual harassment and assault — and schools failed to take action.
Additionally, the interim guidelines allow schools to use the higher “Clear and Convincing Evidence” standard of proof regarding the sexual assault or harassment cases, as long as that standard of proof is used in all other types of conduct code matters. Should schools move to adopt this higher standard of proof, it would mean that in order to receive permanent protection or accommodation, survivors would have to provide more evidence than would be required for a verdict in a civil trial. Again, the type of evidence required for a civil verdict is not realistic in most cases, therefore survivors are left with little or no hope that their schools will do anything to protect them.
Students have now lived through the first semester without 2011 and 2014 protections, and many are feeling uncertain and afraid. Specifically, guidelines from 2011 and 2014 put the responsibility on schools to better protect their students. Now, many survivors feel that if schools think it is easier and cheaper to ignore the problem, they have much more wiggle room to get away with it. Students who are already traumatized are not faced with the knowledge that they are vulnerable and may not receive the protection they desperately need.
To students all over the country, the new guidelines display a flawed concept of fairness. They place increased importance on accommodating the perpetrator, and leave schools with numerous excuses to delay or flat out ignore survivor needs. The shift in these guidelines will serve as a major detriment to survivors, for whom the psychological impacts of sexual assault and harassment are already severe, and compounded when they are forced to interact with the perpetrator on a regular basis without any sort of accommodations or protection.
For these reasons, student survivors and advocacy groups are rooting for SurvJustice, the Victim Rights Law Center, and Equal Rights Advocates. A legal victory on behalf of survivors will prevent perpetrators from continuing harassment or assault, and will allow survivors to heal and move on with their lives. Reporting Sexual Assault: Why Survivors Often Don’t. Maryland Coalition Against Sexual Assault; Crockett, Emily. “Rape and Sexual Assault Are Common. So Why Don’t We Believe Victims?” Vox, 1 May 2016.  Prior to the 2011 dictate, many schools used the “Clear and Convincing Evidence” standard, which is higher than the “Preponderance of the Evidence” but lower than the “Beyond a Reasonable Doubt” standard used in criminal cases.  The Criminal Justice System: Statistics.” The Criminal Justice System: Statistics | RAINN.  Id.  Id.  Most civil cases in Ohio rely on the Preponderance of the Evidence standard.