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DeVos considers whether to roll back Obama-era approach to campus sexual assault

Education Secretary Betsy DeVos testifies on Capitol Hill in June. (Susan Walsh/AP)
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Education Secretary Betsy DeVos has refrained from saying whether her department will continue or reject the Obama administration’s controversial approach to cracking down on campus sexual violence. Now, as she mulls that question, she is set to meet Thursday with advocates on all sides of the issue — college administrators, rape survivors and students accused of assault.

Assault victims and their allies worry that the meetings are pro forma, a mere exercise in advance of an announcement that the Trump administration plans to reverse course on federal guidance that played a key role in forcing colleges to do more to protect survivors of sexual violence. Advocates for the accused, meanwhile, see an opening to do away with an approach that they argue has led colleges to conduct biased investigations that label innocent students as rapists.

“We’re not interested in getting rid of civil rights,” said Cynthia Garrett, co-president of Families Advocating for Campus Equality (FACE), a group founded by three mothers who said their sons were falsely accused of sexual misconduct on campus. “What we do oppose,” she said, is the Education Department’s “coercive and punitive attitude toward schools, because we believe it drove schools to decide that it was easier to find a student guilty and there would be fewer repercussions than finding a student not responsible.”

Under DeVos, Education Department likely to make significant shift on sexual assault

Assault survivors and advocates are planning to rally outside the Education Department on Thursday morning ahead of the meetings, calling on DeVos to stay the course on an approach they say has pushed colleges to take assault allegations seriously and encouraged victims to come forward. They also urge her to hold more than one meeting with survivors before making a decision.

“We’re glad we’re finally going to be meeting with the secretary, but 90 minutes is not enough for her to understand the survivor experience,” said Jess Davidson of End Rape on Campus. Davidson said she is also troubled that DeVos is meeting for the same amount of time Thursday with advocates for victims and for wrongly accused students, since only a tiny fraction of reported rapes are found to be false. “Setting this up as equivalent, the side of survivors and the side of the wrongfully accused, is inaccurate,” Davidson said.

At issue is guidance the Education Department issued in 2011 outlining how K-12 schools and colleges must handle sexual assault allegations. Republicans assailed the guidance as an executive overreach and a unilateral writing of new law, while Obama administration officials defended it as a clarification of schools’ obligations under the federal law known as Title IX, which prohibits sex discrimination at federally funded schools.

In the aftermath of the guidance and the subsequent national focus on campus rape, the number of sexual violence cases under investigation by the Education Department’s Office for Civil Rights grew quickly. Fifty-five colleges were under investigation in May 2014, when the Education Department first named institutions with open cases; as of July 12, 344 sexual-violence cases were under investigation at 242 institutions.

Survivors of assault, who had been pressing colleges to confront what they deemed campuses’ rape culture, greeted the federal guidance as an important step toward ensuring disciplinary consequences — including expulsion — for students found to have committed an assault. Critics said the federal guidance saddled schools with investigations they were ill-equipped to resolve fairly.

College sexual assault: 1 in 5 women say they were violated

Particularly controversial was the notion that the outcome of investigations should rely on the preponderance of the evidence in each case to determine whether an assault had occurred. Critics argue that bar is too low and plan to argue in Thursday’s meeting with DeVos that the more rigorous standard of “clear and convincing evidence” should have to be met before finding a student responsible for assault. They also want to see students who are accused of assault guaranteed access to support services and to confidential advocates who can help them navigate the investigation and hearing process.

Some also want to see colleges stop investigating sexual assault allegations, deferring instead to law enforcement agencies. On many campuses, students, administrators and faculty members sit on panels that adjudicate assault cases. “It’s just crazy,” said Mike Allen, a Cincinnati lawyer who represents accused students. “That’s the only way I know how to say it.”

Survivors and their allies oppose forcing students to go through the criminal justice system, arguing that it exists for an entirely different purpose from campus due process proceedings, which are meant to ensure that students have access to education — not to put anyone in jail.

“Many survivors, they just want to finish their degree and take a class without someone who raped them,” Davidson said. “They shouldn’t have to go through a five-year trial before that can happen.”

Here are the attendees at Thursday’s meetings, each of which is scheduled to last 90 minutes, according to the Education Department:

Session One: Survivors of sexual violence

Participants: End Rape on Campus (2 students), National Women’s Law Center (1 student), Girls Inc. (1 student), Liberty Education Fund (1 student), National Center for Transgender Equality (1 student), Rape, Abuse & Incest National Network (1 student), SurvJustice (1 student), Human Rights Campaign (1 student)

Session Two: Students who have been falsely accused and disciplined under Title IX
Participants: National Coalition for Men Carolinas (2 students, 2 parents), Families Advocating for Campus Equality (3 students), Stop Abusive and Violent Environments (2 students)

Session Three: Representatives of educational institutions and subject-matter experts

Participants: Dana Scaduto, general counsel, Dickinson College; Pamela Bernard, general counsel, Duke University; Jerry Blakemore, general counsel, University of North Carolina at Greensboro; Kathleen Santora, president and chief executive officer, National Association of College and University Attorneys; Terry Hartle, senior vice president, government and public affairs, American Council on Education; Michelle Johnston, president, University of Rio Grande; Naomi Gittins, managing director, National School Boards Association; Phillip Hartley, vice chair, National School Boards Association; Kimberly Lau, Warshaw Burstein LLP; Anne Hedgepeth, interim vice president, public policy and government relations, American Association of University Women; Deborah Blake, professor, University of Pittsburgh School of Law; Ritchie Berger, Board of Regents, American College of Trial Lawyers; Naomi Shatz, Zalkind Duncan & Bernstein LLP; Dianne Harrison, president, California State University; John Jasinski, president, Northwest Missouri State University; Stephen Eck, Council for Christian Colleges & Universities; Steve Sandberg, deputy general counsel, Brigham Young University; Patricia Bradley, Title IX coordinator, Fayetteville State University; Michael Zola, vice president for government relations and policy analysis, American Association of State Colleges and Universities.