Following Secretary of Education Betsy DeVos’ vow to replace the current “failed system” for addressing campus sexual assault, the future of reporting procedures for sexual misconduct at Yale remains slightly murky. However, both student and administrative responses indicate that the two groups are searching for solutions while schools await further instruction from the federal government.

Obama-era campus sexual assault reform centers around a 2011 Title IX–related dear colleague letter in which former Vice President Joe Biden and former Secretary of Education Arne Duncan outlined the expectations for how all American colleges and universities should address sexual violence on campus. Recommendations included lowering the standard of proof in sexual assault cases, setting time limits on responses to allegations and limiting the accused’s right to cross-examine the complainant. The Office for Civil Rights enforced the changes by threatening to withdraw federal funds from any school failing to meet the new standard.

Students who advocate for a better sexual climate on campus responded to DeVos’ announcement with shock and disappointment, while administrators reaffirmed their commitment to handling issues of sexual assault fairly.

“We thought that things were going to get worse after Trump was elected, but honestly this is the worst case scenario,” said Helen Price ’18, co-founder and co-director of Unite Against Sexual Assault Yale. “Perhaps what’s really disturbing is that we’ve had a lot of survivors come to us who are unsure about what’s going on. Yale hasn’t been very helpful, and they’re asking us if it’s going to be the case that if I don’t report now I’ll never have the chance because DeVos changes the rules.”

Price noted that DeVos’ plans, in the worst case, are reminiscent of the Safe Campus Act, which was proposed in Congress in the summer of 2015 and would have required that sexual assault survivors report their cases directly to the police rather than to the University. By the fall of 2015, however, support for the bill had ebbed due to outside criticism. According to Price, the bill’s passage would have been particularly egregious for people of color as well as transgender and gender nonbinary individuals who are at a disproportionate risk of sexual assault and abuse from the police.

University Title IX Coordinator Stephanie Spangler sent an email to the Yale student body on the same day as DeVos’  speech, reassuring the student body that the University remains “steadfast in its commitment to address allegations of misconduct promptly and fairly.”

Yale College Dean Marvin Chun told the News that he agrees with the contents of Spangler’s email and will follow her guidance on how to address new policies announced by the Department of Education. Chun noted that amendments to Title IX policy over the years have increased awareness of sexual assault on campus and of the resources available to those impacted.

“During my time as head of Berkeley I definitely saw the evolution of this, so I do think we’re in a better place,” Chun said. “No doubt the safety of our students is paramount.”

Price said USAY hopes that Yale will pledge to maintain its current reporting procedures, “in defiance of DeVos’ changes if necessary.” Because the Department of Education will no longer be investigating schools for the improper handling of sexual assault cases, Price added, USAY also urges Yale to set up an independent panel to ensure sexual assault cases are handled fairly on all sides. She added that she and USAY were disappointed by Spangler’s lack of specific future plans.

Still, some of Yale’s initiatives to promote a better sexual climate — such as the Consent and Communication Educators program — predate the Obama-era policies that DeVos has vowed to end. Patrick Sullivan ’18, a project coordinator for the CCEs, said the program has never hinged on a federal mandate and will continue to exist regardless of DeVos’ proposals.

“The CCE program was developed over the course of 2009 and 2010, well before the 2011 dear colleague letter was released,” said Assistant Dean of Student Affairs Melanie Boyd ’90, whose office runs the CCE program. “The details of OCR guidance are important overall, but don’t have much direct impact on the CCEs’ work.”

In an email to the News, Spangler did not detail any specific plans to deal with DeVos’ proposals, should they materialize, but noted that the administration will rely on continued input from the Yale community moving forward.

“Regardless of those proposals, we remain dedicated to upholding our shared values and to maintaining a safe, respectful, and inclusive campus,” Spangler said.

Sullivan said the one silver lining in DeVos’ speech is the opportunity to comment publicly on how American universities should better approach the issue of sexual misconduct. In her Sept. 7 speech, DeVos said that her office will launch a “transparent notice-and-comment process” to incorporate public feedback into a new system.

“That’s something that I think the CCEs are excited about and I hope that what happens on our campus is that there is a response,” Sullivan said. “Whether or not they listen is another question, but you can go on now and actually make a public comment, and I would hope that students feel empowered to do that.”

The CCE program currently consists of 49 sophomores, juniors and seniors.

Zainab Hamidzainab.hamid@yale.edu

Britton O’Dalybritton.odaly@yale.edu

  • sy

    Is Yale still for secret rape tribunals without due process and for secret Plato class essay tribunals without due process? Is Yale still for women walking into apartment and dorm bedrooms around 2 a.m. for casual sex, repeatedly in the lawsuits, followed by its Title IX police prosecuting sworn accusations of unwanted sex/rape 2-13 months later? Yale’s political and quasi religious project will be a winner, or it will be a loser. On those questions there is no room left for dialogue or compromise.

  • concerned

    The University continues to promote an inflated sense of collegiality which maintains the room for confirmed predators to operate whether they be faculty, staff, or students. This may partly have to do with the absence of experience on the part of administrators promoted from stereotypical demographic backgrounds. Dispensing with “collegiality” may result in better evidence for a misconduct case and bolstering the evidence at the expense of collegiality may be the price to be paid to DeVos. A lot of this gets more real when administrators with working experience of being the target of serious misconduct, beginning as students, can take the helm.
    https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

    • Nancy Morris

      Gee, what’s a “confirmed predator?” I’m not aware of a single case of anyone “confirmed” to have committed sexual assault in any Yale hearing (no matter how deficient in due process safeguards) later being “confirmed” to have AGAIN committed such an assault after such a hearing. So on what are you basing your claims?

      Since you make no mention of any due process being involved in whatever “confirmation” it is you are discussing, one gets the impression that you are using the term “confirmed predator” in its broadest sense: To include people subject only to wholly UNCONFIRMED accusations or even mere rumors or nasty, post-break-up invective. Have I got that right?

      • concerned

        Well, no. I would rather not propose waiting around for a videotape or worse to ensue. I’m thinking along the lines of situations uncovered at prep schools where esteemed educators turn out to be serial child molesters, even when there is ample evidence administrators were warned. There are plenty of examples of institutional inertia and serial predation.

        • Nancy Morris

          in other words, you are engaging in abstract, speculative fantasy with no factual connection to the real Yale.

          • concerned

            Yes, the real Yale, the speculative fantasy place where an employee dutifully shows up for work after assaulting a graduate student in a state-of-the-art laboratory equipped with no phone and hiding her body down the hall.

          • Nancy Morris

            If you have a coherent argument to dangle from your wild tangent, please don’t hesitate to write.

          • concerned

            Just the facts, ma’am. 80-some REPORTED complaints in 6 months in 2017.

          • Mary Ann

            You actually brandish complaints as “evidence?” Complaints the merit and nature of which you have exactly zero knowledge, complaints that have never been investigated or answered, and without your even stating what it is these complaints are supposed to be evidence of.

            Wow. Well, at least you are shameless in your utter contempt for due process and your complete disregard of the significance of a hearing of any type or any conventional notion of Justice.

            The Red Queen’s rantings have nothing on your comments here.

          • concerned

            My focus here is not about any conventional notions of Justice. This is your topic. I am talking about maintaining or not, hostile learning/working environments encompassing the highest levels of intellectual engagement at institutions supported in one way or another by federal funding. If you would like to teach a course about any conventional notions of Justice, feel free to do so. If you teach at a federally funded institution, however, there are rules and regulations concerning non-discrimination that you must follow. If you don’t like these rules, you can chose to teach at a non-federally funded institution and I encourage you to do so.

          • Mary Ann

            Well, at least we agree that your “focus here is not about any conventional notions of Justice.”

        • Mary Ann

          I don’t get it. You “would rather not propose waiting around for a videotape or worse to ensue?” What WOULD you propose “waiting around for?” Yale is supposed to take action against its faculty and students once administrators are “warned?” What the hell would that mean? Execution first, trial later!

          How does what you want differ from taking action against someone on the basis of an unconfirmed accusation? Isn’t an unconfirmed accusation more than a mere a “warning?” The Yale you conjure sounds like something out of one of Tomas de Torquemada’s fever dreams. A total nightmare.

          Whatever else emerges from all this, every single person at Yale had better pray that nobody who thinks like you gets anywhere close to making any of the decisions involved.

          • concerned

            You mean like quashing evidence that a graduate student complained about a Yale employee before she was killed by him?

          • Mary Ann

            Your arguments are getting less complete and more obviously deranged.

          • concerned

            Just the facts, ma’am. 80-some reported complaints in 6 months in 2017.

  • Nancy Morris

    One wonders if the YDN even considered contacting anyone who had actually been on the receiving end of the Kangaroo Court system imposed by the Dear Colleague letter. Indeed, this entire article suggests that it’s authors spends essentially all of their time in contact with affinity groups carefully selected to confirm their pre-existing biases.

    The curious and unexamined notion that rescission of the Dear Colleague Letter would have little practical effect on institutions that continue to maintain the procedures they have adopted under the Letter is deeply and risibly wrong. At a minimum, discarding the Obama-era guidance would eliminate one of schools’ standard defenses against lawsuits by accused students, which is to claim that they were merely doing Washington’s bidding.

    Further, recission of the Dear Colleague Letter will certainly be based on DoE findings that it’s mandates often result in hearings violative of basic due process, as Secretary DeVos’ speech already indicates. A school’s retention of Dear Colleague Letter procedures would, in the light of such DoE findings, hugely increase that school’s vulnerability to court actions not just by depriving the school of a defense but by providing plaintiff’s with claims that the school deliberately violated due process in the first place. And once a court finds in one case that a school’s procedures violate due process, standard doctrines of collateral estoppel will propagate the finding to other cases. That school will become a sitting litigation duck.

    Indeed, once such DoE findings are made, Dear Colleague Letter procedures will almost certainly themselves be violative of Title IX.

    Of course this article also ignores the sprawling incoherence of the entire Dear Colleague Letter approach, the morally criminal and egregious failure to comply with the Administrative Procedure Act in foisting it on the nation (we are only told that some will “welcome comments”), and the preposterous want of due process under the Dear Colleague Letter procedures. Those defects are articulated (among many other places, all of which this article ignores) in a memo submitted to the Department of Education within the last few weeks, by Harvard Law School professors Janet E. Halley, Elizabeth D. Bartholet and Jeannie Suk Gersen and lecturer Nancy Gertner.

    One specific element of the Dear Colleague Letter system the HLS memo severely criticizes is the imposition of the “preponderance of the evidence” standard that is commonly employed in civil actions. That the Dear Colleague Letter system strips its accused of most of the rights guaranteed in ANY civil law suit does not even seem to occur to the author of this article. And there’s lots more than that wrong with the “preponderance of the evidence” standard in this context, as the HLS faculty explain.

    But as Boston College’s R. Shep Melnick has noted, that standard was ‘just a minor part of the OCR’s procedural requirements.’ Worse were ‘the agency’s rules on cross-examination and appeals; its informal pressure on schools to institute a ‘single-investigator model’ that turns one person appointed by the school’s ‘Title IX Coordinator’ into a detective, judge, and jury; and the intense pressure for schools to show they are ‘getting tough’ on sexual assault.’ As Mrs. DeVos observed: ‘It’s no wonder so many call these proceedings ‘kangaroo courts.’

    As the four Harvard law faculty cited above argue, a fair process requires “neutral decisionmakers who are independent of the school’s [federal regulatory] compliance interest, and independent decisionmakers providing a check on arbitrary and unlawful decisions.” The four had been among more than two dozen Harvard law professors to express concerns about the Obama administration’s—and Harvard’s—handling of Title IX. So too had 16 University of Pennsylvania law professors, as well as the American Council for Trial Lawyers.

    None of this skepticism of the Dear Colleague mess is reflected in this article. Perhaps the authors know nobody who knows anybody who shares such skepticism?

    To be sure, withdrawing the Title IX guidance, as the department is now expected to do, would not be enough to create a fairer system on campus. In a just-released study, the Foundation for Individual Rights in Education found only two of the nation’s 53 leading institutions (Cornell and the University of California, Berkeley) earned a score of greater than 60% for fair procedures in their Title IX tribunals.

    Still, discarding the Obama-era guidance would have two immediate salutary effects. First, as noted above, it would eliminate one of universities’ standard defenses against lawsuits by accused students, which is to claim that they were merely doing Washington’s bidding.

    Second, it would allow the department to implement Title IX policy through new, carefully considered regulations after a period of public notice and comment. The FIRE study identifies provisions that would be necessary to achieve a minimum of fairness in campus tribunals—the presumption of innocence, clear notice of alleged violations, sufficient time for the accused student to prepare his defense, impartial fact-finders, access to all relevant and exculpatory evidence, the right to cross-examine the accuser, a meaningful right to legal representation, and a meaningful right to appeal.

    Due process is, or should be, neither a liberal nor a conservative issue, and Mrs. DeVos is hardly alone in recognizing the shortcomings of the policy she inherited. But the accusers-rights organizations that dominated Title IX policy during the Obama administration have reacted with outrage.

    This article does a fine job of repeating that canned outrage. The authors have bright futures as stenographers.

    • Nancy Morris

      The authors of this narrow, intellectually and factually cramped article might also wish to read the eviseration of the Dear Colleague Letter madness effected in: Janet Napolitano, “Only Yes Means Yes”: An Essay on University Policies Regarding Sexual Violence and Sexual Assault , 33 Yale L. & Pol’y Rev. 387 (2015).

      Yes, THAT Janet Napolitano and THAT Yale Law and Polcy Review.

      It seems that once Napolitano assumed her position as leader of the University of California and she actually had to immerse herself in the muck her prior colleagues had produced with their undemocratic fiats, some of the scales fell from her eyes, and the monstrousness of what the Obama administration had perpetrated in its Orwellian “Dear Colleague Letters” became clear.

      As an aside, it’s also worth noting that the 2011 Dear Colleague Letter under discussion here is by no means the only, or even the worst or most destructive, Dear Colleague Letter issued by the Obama/Duncan Department of Education. For example, a completely separate letter directed to public schools articulated the flatly insane diktat that a system of school discipline depending on fair and defensible rules, fairly and equitably administrated, would nevertheless be considered by the DofE to be intolerable if the actual effect was to suspend or expel African American students in excess of their fraction of the school population, notwithstanding even overwhelming evidence indicating a higher level of misbehavior among such students. The damage that Letter has worked in public schools across the nation is enormous.

      In general, the aggregate activities of the Duncan/Obama Department of Education are on the whole indefensible, bordering in many cases on actual evil.