Betsy DeVos: the Obama-era effort to protect sexual assault victims was “overreach”

Education Secretary Betsy DeVos will not rescind Obama-era guidelines that pushed colleges to take more steps to deal with sexual harassment and assault — yet. But the Education Department is taking the first steps toward eventually rewriting them, DeVos announced in a speech Thursday that harshly criticized the Obama administration’s approach as “intimidation and coercion.”

The current guidelines hurt both sexual assault survivors and people who are accused, DeVos said in a speech at the Antonin Scalia School of Law at George Mason University on Thursday. She also said those guidelines make college administrators less likely to report issues on campus, as they are afraid the federal government will start investigating them.

“The era of ‘rule by letter’ is over,” DeVos said, referencing the 2011 letter Obama administration officials sent colleges that signaled the Office for Civil Rights would aggressively investigate colleges for mishandling sexual assault. “Through intimidation and coercion, the failed system has clearly pushed schools to overreach. With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.”

DeVos announced the Education Department will open the issue up for public comment — the first step in potentially writing new regulations. That came as a surprise to many who thought she would rescind the Obama-era guidance outright. Beyond that, though, DeVos’s speech sent a clear signal: In her view, the Obama administration’s aggressive investigation of colleges for mishandling cases of sexual assault went too far.

The Obama administration pushed colleges to punish sexual assault

The Education Department gets a say over sexual assault cases on campus from Title IX, part of a major federal higher education law.

Although Title IX is best known for opening high school and college sports to women and girls, the law explicitly bars any schools that get federal dollars from discriminating based on gender — which, since 1976, has included preventing and addressing sexual harassment.

Even if the police are investigating allegations of rape or sexual assault, colleges must also conduct their own investigations to ensure the victim’s right to an education is not being violated. That’s in part because colleges can do things the police can’t — like shifting dorm assignments or class schedules so a student doesn’t have to come in contact with the person she accused of rape.

In 2011, the Obama administration sent a letter, known as a “Dear Colleague letter,” to colleges and universities, reminding them of this obligation. Technically, those letters aren’t a formal rule change. But because the ultimate penalty for Title IX violations can be a loss of federal funding — a death knell for colleges that depend on federal student loans and grants — the guidance had teeth. (No college has ever been denied federal funding for a Title IX violation; usually, the Education Department reaches an agreement with the college that it will change its policies.)

One of the most consequential and controversial parts of the letter dealt with the standard of evidence colleges use when finding students responsible for sexual assault. In a criminal court, someone accused of a crime has to be found guilty beyond a reasonable doubt. Many colleges, in sexual assault cases, had used a slightly lower standard of “clear and convincing evidence.” The Obama administration told colleges to use instead the “preponderance of the evidence” — a greater chance that someone is guilty than not — in their student justice systems, which is the standard of proof in a civil trial.

It was part of a larger move on the Obama administration’s part to tackle sexual assault on college campuses, which also included a campaign from the White House called “It’s On Us” and outreach by Vice President Joe Biden.

Advocates cheered the move as a sign that sexual assault was finally being taken seriously. The Education Department’s Office of Civil Rights started investigating over 50 colleges after receiving complaints that those colleges had mishandled cases of sexual assault and were misreporting the number of cases.

Since the new regulations were put in place, the number of investigations into schools rose dramatically. Since 2011, a total of 435 investigations were opened into whether colleges were mishandling cases; 75 cases have been resolved, while another 360 remain open.

But some argued that the Obama administration had pushed schools too far in the other direction — out of concern for protecting victims’ rights to an education, these critics argued, the administration was disregarding the rights of students who were accused of sexual assault.

In 2014, a group of 28 Harvard Law School professors took an unprecedented step of writing a letter pushing back on the Obama guidance, saying it had caused Harvard’s administration to overcorrect to the extreme.

“I think they created an environment where schools felt in order to keep their federal funding, they had to change their policies to ones stacked against anybody accused,” said Elizabeth Bartholet, one of law professors who signed the letter and faculty director of Harvard Law School’s Child Advocacy Program.

Harvard faculty said they were dismayed at the school’s new sexual assault policy, which they characterized as failing to give enough representation to the accused, putting in an overly broad definition of sexual harassment, and being formulated without staff input. Ultimately, Harvard Law School created their own, separate policy.

“There’s a lot of agreement that there is sexual assault and there should be good, fair procedures,” Bartholet said. “In my view, you just undermine that effort when you create the policies we now have.”

How DeVos could change the guidance

DeVos is not suggesting immediate changes to any of the existing policies, but her speech today revealed where those changes might be.

One of the main things the education secretary highlighted is a more narrow definition of what constitutes sexual misconduct, especially in sexual harassment cases. The current regulations define sexual harassment as “unwelcome conduct of a sexual nature.”

Bartholet and the Harvard law professors agree a narrow standard is appropriate, and have advocated for a definition closer to workplace sexual harassment, where the accuser has to demonstrate the person harassing them created a hostile environment without their consent.

DeVos also said she wanted to make sure harassment definitions did not impede free speech on campuses.

“Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes,” she said. “Any perceived offense can become a full-blown Title IX investigation. But if everything is harassment, then nothing is. Punishing speech protected by the First Amendment trivializes actual harassment.”

The federal government is required to investigate complaints that colleges violated Title IX. In one case in 2015, that meant investigating a Northwestern University professor who wrote an essay defending romantic and sexual relationships between professors and students. The professor was cleared, but the investigation became infamous among Title IX skeptics because of the free speech implications.

Besides mentioning the low standard of proof currently in place, DeVos did not say whether she planned to increase it.

Going forward with the public comment period, DeVos said she welcomed input from colleges. She used strong language when talking about the previous administration, saying the Obama-era Office of Civil Rights was “weaponized … to work against schools and against students.”

Her speech received criticism from The American Association of University Women, which characterized the move as a the beginning of a regulation roll-back.

“Secretary Betsy DeVos’ decision to open up Title IX for changes represents a blatant intent to roll back protections for students,” said AAUW Chief Executive Officer Kimberly Churches in a statement. “It is yet another action by this administration that is at direct odds with upholding the civil rights of all Americans.”

The Education Department’s attitude matters

Despite DeVos’s language, the Education Department’s guidance so far isn’t changing. But it’s not the first time that DeVos’s department, including the Office of Civil Rights, which handles sexual assault complaints, has indicated that it thought the Obama administration went too far.

Candice Jackson, the top civil rights official for the Department of Education, was criticized after she told the New York Times that “The 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.’”

Jackson later apologized and maintained that all sexual assault cases are serious, but her comments led many sexual assault survivors to question whether DeVos’s Department of Education would take their concerns seriously.

Even without a change in guidance, the change in tone matters because the Education Department has some leeway on how these cases are handled and investigated.

Already, DeVos and Jackson have received backlash for clearing a backlog of civil rights cases at a record pace, over 1,500 at both colleges and K-12 schools. These cases are not exclusively sexual assault or harassment cases, but they are included in the overall mix. Jackson said the rationale for this is to look more closely at individual cases, rather than trying to address systemic issues.

DeVos could also, for example, signal that she is open to complaints from students accused of sexual assault who feel their rights are violated, and pursue those complaints vigorously. (There’s a precedent — the Obama administration found in October 2016 that Wesley College had violated the rights of an accused student.)

The Education Department could also slow down investigations by assigning fewer people to look into complaints of mishandled sexual assault, effectively sending a signal to colleges and universities.

It’s not clear if DeVos plans to do any of that. And colleges will still face pressure from survivors’ groups to keep the policies and programs from the Obama administration in place. But DeVos’s speech was a strongly worded signal that the administration likely isn’t happy to leave the status quo in place.