This piece originally ran as a post on WRJ's blog.
April is Sexual Assault Awareness Month, a time for us to reflect and re-educate ourselves on the unyielding problem of sexual assault. In the last few months, the #MeToo movement has shifted the national conversation towards the issue of workplace sexual harassment. While related, it is important to continue the discussion around sexual assault as its own issue, building on the awareness that has grown in the last few years. Campus sexual assault remains a pervasive problem and focus on it has reignited in response to troubling moves by Department of Education Secretary Betsy DeVos. In order to re-focus on the issue of sexual assault, let’s revisit the changes to campus sexual assault policy that have occurred over the last year.
First, some background: Title IX of the Education Amendments of 1972 prohibits sex discrimination in education. Sexual violence perpetuates gender inequality, and thus constitutes sex discrimination. Therefore, on campuses, universities have an obligation under Title IX to respond to reports of sexual violence. Under President Obama, the Department of Education Office for Civil Rights published a “Dear Colleague Letter” in 2011 and “Questions and Answers on Title IX Sexual Violence” in 2014 to clarify schools’ Title IX responsibilities in responding to sexual assault claims.
In September of 2017, Secretary DeVos rescinded both of these Obama-era campus sexual assault policies, and replaced them with an interim Q&A to guide schools (until the Department creates a new policy through a notice and comment period). This new guidance included several substantive policy changes that greatly softened the requirements for schools, allowing for rollbacks of survivor protections.
The new Q&A changed the burden of proof schools are required to use in sexual assault proceedings. Under the previous policy, schools had to use the “preponderance of the evidence” standard, the lowest burden of proof. This standard requires that a claim is more likely than not to have occurred and is used in most civil cases and school disciplinary proceedings (like for physical assault). The new guidance allows schools to use the “clear and convincing evidence” standard instead, a higher burden of proof. Campus sexual assault advocates greatly criticized this move for raising the standard of proof above that of school disciplinary hearings, as well as tipping the scales in favor of the accused. Combined with DeVos’s meeting with controversial men’s rights groups and a victim blaming statement by the top official in the Department’s Office of Civil Rights, advocates understandably viewed this change in standards as dangerously undermining protections for survivors.
Beyond this change in the burden of proof, the new Q&A included other policy changes that Secretary DeVos said were intended to “ensure fundamental fairness.” However, many of the changes seem to decrease fairness and defer to the accused. The new policy allows schools to offer an appeals process to neither side, the accused, or both sides, while the Obama-era policy required that the appeals process be equally available to both parties. The new guidance also reversed the previous policy of discouraging schools from allowing parties to cross examine one another. The 2014 Q&A encouraged schools to have a third party conduct cross-examinations, given that “[a]llowing an alleged perpetrator to question a complainant directly may be traumatic or intimidating, and may perpetuate a hostile environment.” The new Q&A eliminates this guidance, potentially forcing a survivor to be cross-examined by his or her assailant. In the midst of continuous rhetoric about fairness, these moves appear to prioritize the rights of the accused over those of the accuser.
In the wake of these major policy shifts, advocacy groups have sprung into action. Scores of women’s rights groups condemned these changes, and WRJ wrote an open letter to Secretary DeVos opposing the rollback. More recently, a group of women’s, survivor, and civil rights groups sued the Department of Education, claiming this policy shift discriminated against accusers and violated federal law. Groups like End Rape on Campus and Know Your IX have continued their essential work of educating and empowering students to improve campus policies and use their rights, and have simultaneously maintained pressure of the Department to undo these harmful changes.
Although we are still waiting on the notice and comment period for the new guidance to begin, there are actions we can take right now. Students of all ages and their parents can work with schools to ensure sexual assault policies meet best practice standards. Just a few months ago, the URJ passed a resolution on Student on Student Sexual Violence in Schools, encouraging all Reform institutions to integrate education and training about sexual assault into our curricula and culture. We must also loudly support legislative measures to strengthen school sexual violence policies, like in the upcoming reauthorization of the Violence Against Women Act. For more guidance, see the RAC’s Sexual Assault Awareness Month toolkit.