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“If everything is harassment, then nothing is,” said Secretary of Education Betsy DeVos at George Mason University on Thursday morning as she announced the Department’s plans to review and possibly overhaul Obama-era guidelines for sexual misconduct on college campuses.

In her speech, DeVos publicly condemned the Obama administration’s 2011 Title IX guidance, sent in the form of a “Dear Colleague Letter,” which mandated that all colleges receiving federal funding use a lower standard of proof — a preponderance of evidence — in cases of sexual assault. She criticized the Obama administration for compelling schools to enforce “ambiguous and incredibly broad definitions of assault and harassment” and stressed that the current approach sidelines the rights of the accused.

DeVos added that the department will be seeking public feedback as it considers replacing the current system with one that is “workable, effective and fair.”

Just hours after DeVos’ statement, Deputy Provost for Health Affairs and Academic Integrity Stephanie Spangler sent an email to the Yale community reiterating the University’s commitment to addressing allegations of misconduct fairly. Spangler added that Yale will take advantage of the department’s request for comments to describe its continuing efforts to create a “healthy campus culture.”

“We remain steadfast in our dedication to our values and to our commitment to address allegations of misconduct promptly and fairly and to challenge conduct that denies individuals an equal opportunity to achieve their professional and educational aspirations,” Spangler said in an email to the News.

Yale College Dean Marvin Chun described DeVos’ announcement as “troubling” but said he would have to look more closely at her statement before commenting further.

Public Relations Coordinator for the Women’s Center Mary Miller ’20 said that although DeVos acknowledged that sexual assault accusations need to be taken seriously, there are good reasons to be concerned about the lens through which DeVos and her team view the issue of sexual misconduct. In particular, Miller took issue with DeVos’ belief that Title IX employs ambiguous and overbroad definitions of sexual assault and harassment.

“What she is looking to do here is narrow the definition of assault and harassment that is being used in Title IX, which is seriously dangerous,” Miller said. “It is a broad definition because the scope of harassment and assault is broad. Frankly, it’s unsettling that DeVos would believe that since so much seems to be qualifying as harassment, the problem is our definition and not our culture.”

Miller added that while Title IX is not perfect and needs work, the way in which DeVos is spinning the issue is “terrifying.”

Title IX, passed among the Education Amendments of 1972, protects people from discrimination on the basis of sex and gender at institutions that receive federal funding. Though the legislation initially offered female athletes the same benefits as their male counterparts, the Obama administration’s Dear Colleague Letter later reinterpreted Title IX to give the federal government jurisdiction over the handling of sexual assault allegations. Just a week before Yale and thousands of other universities across the United States were asked to comply with the new 2011 guidelines, 16 students and alumni filed a complaint in the Department of Education’s Office for Civil Rights alleging that Yale had allowed a hostile sexual environment to persist on campus. Following that, then-University Provost Peter Salovey announced a new grievance procedure in the form of a University-Wide Committee on Sexual Misconduct — a group to which students across the University can submit cases of sexual misconduct, which had been in the works since early 2010.

Later that year, Yale redefined its terms of sexual misconduct to encompass sexually harassing speech and online communication, as well as nonconsensual sexual contact.

According to Miller, the Women’s Center will watch how the issue develops. If it becomes clear that Title IX is going to be overhauled to “unevenly protect the accused,” the Center will take a stance on behalf of Title IX and will protest, when doing so is appropriate, Miller added.

“We need to be ensuring that no matter what road the Department of Education goes down, that at Yale, students who experience assault and harassment have every confidence in the University that if they come forward, justice will be achievable for them,” Miller said.

According to the semiannual Title IX report, Yale received 82 complaints of sexual misconduct between January 1 and June 30.

Hailey Fuchs hailey.fuchs@yale.edu | @Hailey_Fuchs 

Zainab Hamidzainab.hamid@yale.edu 

  • concerned

    Today is the anniversary of the sexual assault and murder of Annie Le ’13PhD while in a medical school biological research lab in 2009. At that time Yale president Richard C. Levin ’74PhD said “This incident could have happened in any city, in any university, or in any workplace. It says more about the dark side of the human soul than it does about the extent of security measures.” Then Dean Cooley was silent about what her admitted student went through. Given the reports of 82 incidents of misconduct at Yale in the past 6 months, Betsy DeVos is the least of our worries.

  • Nancy Morris

    Whether DeVos produces a better result than her Obama administration predecessors remains to be seen. But there is little question that from a legal and procedural perspective there are serious problems with the Obama administration construction of Title IX (and therefor with current Yale practices).

    Those problems were recently pointed out in a memo by four Harvard Law School faculty members who are pushing for the Department of Education to revise Obama-era Title IX standards governing how universities respond to sexual harassment and assault on campus.

    In a memo submitted to the Department of Education within the last two weeks, Harvard Law School professors Janet E. Halley, Elizabeth D. Bartholet and Jeannie Suk Gersen and lecturer Nancy Gertner called on the Education Department’s Office of Civil Rights to reevaluate the standards put forth in the 2011 Dear Colleague Letter. That directive instructed all colleges and universities receiving federal funds to use a preponderance of evidence standard—a lower standard of proof—in sexual assault cases and established a broader definition of what could be considered sexual harassment. In 2014, Harvard adopted a preponderance of the evidence standard for sexual harassment cases.

    The Law School faculty in their memo—entitled “Fairness for All Students under Title IX”—argued that as a result of the letter, colleges’ definitions of sexual wrongdoing now “go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment.”

    “I think that it is a disgrace that Harvard University adopted one of the most chaotic definitions of sexual harassment I have ever seen, one of the worst procedures in the country, and has stuck by these after years of criticism,” Halley said.

    Halley, Bartholet, Suk Gerson, and Gertner were among the 28 Harvard Law School faculty who in 2014 called for Harvard withdraw its then-new sexual harassment policy in an open letter published in the Boston Globe. In 2015, that Law School broke from the University in crafting and adopting its own set of sexual harassment procedures.

    Halley—who led the effort to publish the memo and has been a vocal opponent of Harvard’s and national sexual assault policies—said she was motivated to write the memo as the Trump administration’s Education Department reconsiders its approach to combating sexual assault on campus.

    • td2016

      There is a great deal of work necessary to repair the damage done by the Dear Colleague Letter and other innovations perpetrated in the throes of related hysteria.

      Any definition of “sexual assault” (or any other offense) that turns on whether a complainant subjectively perceives something as general as “touching” or “physical contact” (even on shoulders) to be sexually abusive, with no necessary reference to the accused’s state of mind, is obviously overbroad and wrong.

      Any definition of “consensual sexual act” that considers intercourse between two drunks to be nonconsensual only with regard to the female (as the definition is written or as it is in practice applied), is obviously wrong and, indeed, itself a breach of Title IX.

      No sexual assault determination should be made without everyone having to the extent practical broad typical legal rights guaranteed even in basic civil law proceedings in a court of law, including the right to conduct discovery, confront and depose witnesses, see all evidence in advance, and advice of an attorney. That college sexual assault proceedings are “not criminal” is of very attenuated significance, since the consequences of such proceedings can be at least as severe as the consequences of civil law suits in which such basic rights are guaranteed. It’s simply absurd to argue that a proceeding in which a student faces expulsion should have fewer procedural safeguards than a civil legal action for money damages brought by one neighbor over another’s trampling a flower bed, for example.

      And on and on.

      In short: Dear Colleague stinks.

      DeVos would be best advised to simply rescind the Dear Colleague Letter and start fresh.

      • concerned

        Anyone who thinks they will have a problem abiding by the Obama Dear Colleague Letter has a choice–do not enroll in a higher educational program protected by Title IX. Indeed, prior to Title IX many, many people were simply excluded from higher educational opportunities on the basis of sex–without any possible legal remedy.

        • Nancy Morris

          Anyone expelled from college in a Title IX kangaroo court proceeding lacking basic procedural safeguards has been “excluded from higher educational opportunities on the basis of sex.”

  • LG

    But will justice be available to the accused? We are talking about ruining someone’s life in ways potentially worse than sending them to jail would. We’re talking about people falsely accused who took their life.

    • yaleisscary

      who was that LG?

  • sy

    As a once Yaleophile, it pains me that Yale is a destructive and dishonorable university. The facts of secret rape tribunals when made public look nothing like rape. Where and when do Yale rapes happen? From the lawsuits, the accuser walks into an off-campus apartment or dorm bedroom usually repeatedly, sometimes for months, around 2 a.m., and reports unwanted sex/rape 2-13 months later. The accused is required to disprove the sworn accusation to a self-selected Yale panel with less due process than a municipal traffic ticket hearing. Discussing the kangaroo court facts and process with friends is another Title IX complaint. Yale uses its endowment to break students financially with legal fees if they object to expulsion or don’t agree to a suspension. New DOE rules will shine a light on the political project and quasireligion. Students and applicants can decide if Yale is paying them enough to be here.

    Democrats could not apply the kangaroo court process to more men, so they settled with Yale and others for just college men for the 2012-16 elections. How is that working? Yale and its identity/interest groups support proper hookup and casual sex and want Title IX employees to go into bedrooms and police it. Older Democrats wanted to get the government out of the bedroom. Yale does not admit any mistakes and does not fix even a few of them. Two new colleges and a student center will not fix Yale.

    • Nancy Morris

      I agree with your substantive criticisms of the Dear Colleague Letter, it’s kangaroo courts and related matters.

      But you should stay a Yaleophile. They really are trying to deal with a very difficult legal and political situation conjured by the overreaching Obama administration and others over whom Yale has no control and little influence.

  • Jenn

    The so-called 2011 “Dear Colleague Letter” is yet another example of a huge mess created by the Obama administration as a consequence of their refusing to abide by required statutory and Constitutional procedures. Let’s review the origins of the 2011 guidance letter. Yes, unanswered complaints on campuses by victims of sexual assault are a real problem, but the Dear Colleague Letter is yet another example of arrogant, incompetent Obamoid overreach.

    Specifically, the Obama Education Department’s response to the very real campus sexual assault problem was to circumvent Congress and neglect normal executive-branch rule-making procedures mandated in the Administrative Procedure Act, such as soliciting public comment. Instead, it simply jammed the policy through by sending out its “Dear Colleague” letter, including an explicit threat that noncomplying schools could lose federal funding. It is no surprise that given its thuggish origins, the Dear Colleague Lettet has made a big mess.

    Mrs. DeVos’s speech is a meticulous deconstruction of the damage done when progressive activists like those who populated the Obama Administration believe their ends justify whatever legal and administrative obliteration it takes.

    “Rather than engage the public on controversial issues, the (Obama) Department’s Office for Civil Rights has issued letters from the desks of unelected and unaccountable political appointees,” Mrs. DeVos said. “Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students.”

    As so often the case, the Obama administration created a huge mess through arrogant, non consultative actions, while inflaming the entire area of discourse and discussion. Now the rest of us have to clean up the mess while Obama frolics on some tropical island or hides out in his $8 Million Kalorama digs.

  • Mary Ann

    To get some idea of the scale of the abrogation of basic procedural rights the Dear Colleague Letter has induced it is worth noting that the Foundation for Individual Rights in Education has rated the top 53 universities in the country (according to U.S. News & World Report) based on 10 fundamental elements of due process. The findings are dire:

    Nearly three-quarters (73.6%) of America’s top 53 universities (by US News ranking) do not even guarantee students that they will be presumed innocent until proven guilty.

    Fewer than half of schools (47.2%) require that fact-finders—the institution’s version of judge and/or jury—be impartial.

    45 out of the 53 universities studied receive a D or F rating from FIRE for at least one disciplinary policy, meaning that they fully provide no more than 4 of the 10 elements of a fair procedure that FIRE rated.

    Most institutions have one set of standards for adjudicating charges of sexual misconduct and another for all other charges. 79 percent of rated universities receive a D or F for protecting the due process rights of students accused of sexual misconduct.

    Of the 102 policies rated at the 53 schools in the report, not a single policy receives an A grade.

    Something obviously must be done. Controlling sexual assault is important. So is controlling all kinds of other destructive behavior. None of that warrants disregarding necessary procedural safeguards to the extent the Dear Colleague Letter insists that American college must do.

  • Sol G

    The Atlantic has published part two of Emily Yoffe’s three-part series on campus sexual assault. In part one, Yoffe made the case that the Obama administration demanded schools adopt low standards of proof and a shoddy judicial process which does not protect the rights of the accused. You can read the full part one here:

    https://www.theatlantic.com/education/archive/2017/09/the-uncomfortable-truth-about-campus-rape-policy/538974/

    In part two, Yoffe delves into the spread of some highly questionable scientific claims which have played a role in how campus administrators handle sexual assault accusations:

    “In the last few years, the federal government has required that all institutions of higher education train staff on the effects of “neurobiological change” in victims of sexual assault, so that officials are able to conduct “trauma-informed” investigations and adjudications.

    “In meeting this federal demand, some schools have come to rely on the work of a small band of self-styled experts in the neurobiology of trauma who claim that sexual violations provoke a disabling, multifaceted physiological response. Being assaulted is traumatic, and no one should expect those who have been assaulted to have perfect recall or behave perfectly rationally, but this argument goes much further. It generally goes like this: People facing sexual assault become terrified, triggering a potent cascade of neurotransmitters and stress hormones.This chemical flood impairs the prefrontal cortex of the brain, impeding victims’ capacity for rational thought, and interferes with their memory. They may have significant trouble recalling their assault or describing it coherently or chronologically. The fear of imminent death may further elicit an extended catatonic state known as “tonic immobility,” rendering them powerless to speak or move—they feel “frozen.”

    “There are serious problems with this framework for interpreting accusations. Yoffe shows it’s doubtful whether major elements of this scientific framework are true at all:

    “I talked with Richard McNally, a psychology professor at Harvard and one of the country’s leading experts on the effects of trauma on memory, about the assertions Campbell made in her presentation. He first said that because assaults do not occur within the laboratory, “there is no direct evidence” of any precise or particular cascade of physiological effects during one, “nor is there going to be.” But there is plenty of evidence about how highly stressful experiences affect memory, and much of it directly contradicts Campbell. In his 2003 book, Remembering Trauma, McNally writes, “Neuroscience research does not support [the] claim that high levels of stress hormones impair memory for traumatic experience.” In fact, it’s almost the opposite: “Extreme stress enhances memory for the central aspects of an overwhelming emotional experience.” There is likely an evolutionary reason for that, McNally said: “It makes sense for natural selection to favor the memory of trauma. If you remember life threatening situations, you’re more likely to avoid them.” Notably, survivors of recent horrific events—the Aurora movie-theater massacre, the San Bernardino terror attack, the Orlando-nightclub mass murder—have at trial or in interviews given narrative accounts of their ordeals that are chronological, coherent, detailed, and lucid. (In the years since McNally’s book was published, some neuroscientific evaluations of military personnel have indicated that, in conditions of the most extreme stress, these hormones might prevent certain memories from being retained, causing gaps or errors in a person’s recollection. But these findings are different from the assertion that traumatic memories are stored in infallible yet “fragmented” condition.)

    “[Psychology professor Rebecca] Campbell’s claim that a sexual-assault victim’s memory consists of completely accurate but disorganized fragments contradicts fundamental scientific knowledge of the nature of memory, McNally told me.

    “As for the claim about “tonic immobility” even Campbell, the professor teaching this material, admits that’s not defensible. Many people do freeze momentarily when a traumatic event happens but it’s usually a brief moment.”

    https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/?utm_source=twb

    We all learned the danger of ignoring problems with an alleged rape victim’s story after Rolling Stone published the infamous “A Rape on Campus” story in 2014. Jackie, the alleged victim, changed her story several times, including the number of people she claimed were involved in the gang rape at a local frat house.

    Yoffe points out the case of a suspended student in Oregon who filed a lawsuit arguing that the investigator in his case ignored the accuser’s shifting story on the grounds that she had “trauma-induced memory problem.” A judge eventually overturned the school’s suspension in part on grounds that the student should have had the opportunity to rebut the assumption that a changing story is proof of memory trauma.

  • ShadrachSmith

    The issues [for those who care] are well presented by Janet Halley, Trading the Megaphone for the Gavel in Title IX Enforcement, 128 Harv. L. Rev. F. 103 (2015).

    Decide for yourself, but that’s a reasonable place to start.