Last Thursday, Education Secretary Betsy DeVos announced that the Trump administration will replace an Obama-era directive on how colleges should deal with sexual assault. Under this directive, institutions that fail to adequately address campus sexual misconduct violate Title IX, a 1972 statute which bars sex discrimination in federally funded educational programs. DeVos argued that the directive is unfair to students accused of sexual harassment and sexual assault, displaying a fundamental misunderstanding of the realities of sexual assault on college campuses.
Revoking the guidance in the Obama administration’s 2011 “Dear Colleague” letter will have potentially disastrous consequences for survivors of sexual assault. It could well herald a return to an era in which schools turned a blind eye to sexual misconduct, enabling perpetrators to act with impunity.
The myth that current guidance is unfair to accused students is rooted in misinformation. In fact, the guidance establishes a number of protections for both complainants and respondents, and explicitly states that any right or opportunity given to one party — such as the right to have an attorney or adviser present at the hearing — must be given to the other. As a result of these procedures, students accused of sexual misconduct actually enjoy greater protections in school disciplinary procedures than those accused of other infractions, such as illegal substance use or simple assault.
Critics often cite as unfair the “Dear Colleague” letter’s directive that schools should use the “preponderance of the evidence” standard in adjudicating sexual misconduct cases. In fact, “preponderance of the evidence” is the standard of proof used in almost all civil cases — court proceedings in which potential penalties preclude incarceration — and schools have been required to use it in disciplinary proceedings since 1995. This standard of proof simply means that if most of the evidence supports the complainant’s version of events, the panel must rule in their favor; conversely, if most evidence supports the respondent’s account, the panel must rule in their favor.
Another persistent criticism of the Obama administration’s directive is that schools should not be handling sexual misconduct at all. In this telling, such matters should be left to the police — even though sexual assault is a civil rights violation in addition to a criminal offense. It is far from unusual for schools to handle serious disciplinary issues that threaten students’ safety — and few people have complaints about colleges investigating simple assault.
On occasion, schools have even investigated murders. It can take years for prosecutors to file charges for homicide cases, and schools cannot wait that long to protect students from harm. Additionally, many survivors do not want to go through a lengthy criminal trial, in which they will have to repeatedly recount their trauma and potentially be subjected to victim-blaming questions during cross-examination.
Finally, police departments have long been perpetrators of violence and discrimination against groups that are disproportionately likely to experience sexually assault, including people of color, sex workers and trans and gender nonconforming individuals. If the police were their only option, these groups might not report sexual misconduct at all.
While DeVos’ announcement was couched in the language of “fairness” and “justice,” her plans are clearly rooted in the same disdain for survivors expressed by her department’s civil rights chief Candice Jackson, who told The New York Times that “accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”
Some college administrators — including University of California President Janet Napolitano —have condemned DeVos’ plans and committed to maintaining procedures set out under the 2011 guidance. Last Thursday, University Title IX Coordinator Stephanie Spangler sent an email emphasizing Yale’s commitment to a “healthy campus culture characterized by mutual respect and well-being.”
But noticeably, she did not commit to maintaining Yale’s current procedures for investigating sexual assault. Yale must do so — and in defiance of DeVos’ changes, if necessary.
Because there is no longer the possibility of a Department of Education investigation if it does not adequately tackle sexual assault, Yale must also appoint an independent panel to ensure its investigations are fair and thorough.
Although we have made a lot of progress on campus sexual assault since 2011 — largely due to the Obama administration’s measures — we must not get complacent. We must not forget the shockingly high rates of sexual assault revealed by the 2015 AAU Campus Climate Survey. 25 percent of Yale undergraduates — including 38.8 percent of women and 37.8 percent of gender nonbinary individuals — reported that they had been sexually assaulted during their time here. Yale must take a stand against Betsy DeVos’ plans and support survivors. We as students must in turn hold Yale accountable.
Helen Price is a senior in Davenport College. She is co-director of Unite Against Sexual Assault Yale. Contact her at firstname.lastname@example.org .