The Washington PostDemocracy Dies in Darkness

DeVos: Too many college students have been treated unfairly under Obama-era sexual assault policy

Education Secretary Betsy DeVos told reporters on July 13, 2017 that her department was reevaluating sexual assault policies on college campuses. (Video: Reuters)

Education Secretary Betsy DeVos said Thursday that too many students have been treated unfairly as colleges have sought to comply with Obama-era policy on handling sexual assault, but she declined to offer any specifics about how she intends to move forward on one of the more controversial and closely watched issues handled by her agency.

“No student should feel like there isn’t a way to seek justice, and no student should feel that the scales are tipped against him or her,” she told reporters Thursday afternoon, following what she called an “emotionally draining” series of meetings with college administrators, survivors of assault and students who said they were falsely accused and wrongly disciplined.

The day after her civil rights chief suggested that 90 percent of assault allegations are the result of drunken and regretted sex rather than rape, DeVos sought to show sensitivity to victims, saying that assault allegations should not be “swept under the rug” and women should not be “dismissed.”

But she also said she was deeply concerned about addressing the concerns of the accused. “Their stories are not often shared,” she said.

Advocates for accused students have been pleased to have the ear of the Trump administration, seeing an opening to roll back Obama-era policies that they argue have results in biased campus sexual assault investigations. During the Thursday session devoted to wrongful accusations, about a half-dozen students (including one woman) told their stories, often tearfully, according to Cynthia Garrett, co-president of Families Advocating for Campus Equality, who was in the meeting.

“The secretary was extremely attentive to these students,” Garrett said. “We had young men breaking down telling their stories.”

But advocates for survivors of sexual assault have been alarmed by what they view as DeVos’s outsize interest in hearing from wrongfully accused students, given that only a small fraction of rape reports are found to be false.

Dozens of survivors and their allies gathered outside the Education Department on Thursday to urge DeVos not to roll back federal protections for victims of sexual violence, and to decry what they view as the Trump administration’s lack of commitment to enforcing federal civil rights law.

On the concrete plaza outside the agency’s D.C. headquarters, activists read the stories of survivors from across the country while DeVos held her meetings inside.

“Survivors want to make it very clear that we deserve to be listened to,” said Mahroh Jahangiri of the advocacy group Know Your IX, one of the event’s organizers.

Education Department officials are weighing whether to keep or reject Obama-era guidance that outlined how schools must meet their obligations under Title IX, a federal law that prohibits sex discrimination at federally funded institutions. Critics of that guidance, issued in 2011, said it was an executive overreach that set too low a bar for campus administrators to find a student guilty of sexual assault.

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

It “incentivized these campus panels to err on the side of punishing potentially innocent students,” said Christopher Perry of Stop Abusive and Violent Environments (SAVE), who met with DeVos on Thursday.

Some accused students hope the Trump administration will take a different tack. Joseph Roberts said he was “cautiously optimistic” that federal officials will care about his story: Roberts said he was falsely accused of sexual harassment and suspended three weeks before he was due to graduate from Savannah State University, an experience that left him hopeless and suicidal. The guidance, he said, “definitely needs to be reexamined.”

Victims advocates and some lawyers believe that the problem is not with the guidance, but with the way some colleges have interpreted it.

“They went overboard in terms of changing their policies,” said Naomi Shatz, a Boston lawyer who represents accused students. Shatz said too many schools don’t hold hearings and don’t give accused students a chance to see the evidence against them — approaches that are unfair and not dictated by the guidance.

Several college officials who participated in the meeting said they were grateful to be asked about this issue, as they had not been during the Obama administration.

In 2012 the American Council on Education sent a letter to the department’s Office for Civil Rights (OCR) with a number of questions, asking for clarification of the 2011 directive, said Terry Hartle of ACE. “The letter has never been answered,” he said.

“The Obama administration took such an enforcement-centered approach that institutions were reluctant to ask questions of OCR for fear of being flagged for an audit,” he said.

Victims’ rights activists argue that the guidance is firmly rooted in existing law and fear that DeVos intends to jettison the guidance. They said remarks this week by Candice Jackson, the acting head of OCR, seemed to confirm that fear.

Speaking to the New York Times, Jackson argued that college investigations have often been unfair to accused students, in part because of undue pressure from the federal government. She claimed that “90 percent” of accusations “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 has since apologized for the statement, saying her words “poorly characterized the conversations I’ve had” with advocates. “As a survivor of rape myself, I would never seek to diminish anyone’s experience,” she said. “All sexual harassment and sexual assault must be taken seriously — which has always been my position and will always be the position of this Department.”

Lawyer who highlighted Hillary Clinton’s role in defending rape suspect tapped for civil rights post

Jackson apologized again to survivors in the meeting Thursday, according to attendees. “It’s impossible to take something like that back,” said Fatima Goss Graves of the National Women’s Law Center, who was in the meeting. But she said the department can show its commitment to protecting students by helping colleges understand how to fairly adjudicate sexual assault allegations, and by conducting a listening tour to hear from survivors around the country.

“We can’t expect them to go to Washington, D.C.,” Goss Graves said. “The department has to go to them and listen deeply.”

DeVos said that while she intends to continue seeking input, she wants to move quickly to make changes.

Thursday’s event was one part of a broader effort to mobilize support for maintaining the 2011 Title IX guidance, which victims’ rights advocates greeted as a step toward ensuring disciplinary consequences for students found to have committed assault. In an op-ed published in Teen Vogue this week, 114 sexual assault survivors called on DeVos to keep the guidance in place.

“We cannot imagine a more cruel or misguided policy agenda than one that withdraws protections from vulnerable students — especially coming from the administration of a man who has been repeatedly accused of committing sexual violence himself,” they wrote.

In a letter to DeVos on Wednesday, Sen. Robert P. Casey Jr. (D-Pa.) urged her to keep the 2011 guidance in place and decried her decision to meet with advocates for the accused, including the National Coalition for Men and Stop Abusive and Violent Environments (SAVE), which the Southern Poverty Law Center has called misogynistic. “Instead of catering to organizations that want to sweep sexual assaults on college campuses under the rug, the Department of Education should confront this challenge directly by coming to uphold the protections currently in place,” Casey wrote.

Sen. Kirsten Gillibrand (D-N.Y.), who spoke at Thursday’s event outside the agency headquarters, said she doesn’t want to see an innocent person punished “any more than I want to see a guilty person let off the hook.” But she said there are still too many victims who are met with blame and retaliation rather than support and protection.

“There continues to be heinous injustice across this country,” she said.

Susan Svrluga contributed to this report.