The confirmation hearing for President-elect Donald Trump’s nominee for education secretary underscored the likelihood of a significant shift in federal policy on sexual assault in college.
Through what she said and what she didn’t, Trump’s nominee, Betsy DeVos, indicated during her hearing Tuesday evening the strong possibility of a new approach to federal civil rights enforcement related to sexual violence.
Under the Obama administration, the Education Department’s Office for Civil Rights, or OCR, was a key player in what has become a six-year campaign to combat sexual assault in schools. A 2011 letter from OCR advised school officials that sexual assault should be considered a form of sexual harassment prohibited under the anti-discrimination law known as Title IX.
The letter told officials that they were obligated to respond promptly to reports of sexual violence and that they must use a standard of “preponderance of the evidence” when determining whether an assault occurred. That standard — common in civil law — is lower than the “clear and convincing” threshold for evidence that some schools had been using until that time. And it is much lower than the “beyond a reasonable doubt” standard required for conviction in criminal cases.
Many Republicans on Capitol Hill hold up the OCR letter as a prime example of what they call the Obama administration’s overreach on civil rights. Democrats, though, hail the letter as a crucial step in advancing a national crusade against sexual assault that has profoundly affected college policies and campus culture.
Sen. Robert P. Casey Jr. (D-Pa.) had a significant exchange with DeVos about her views on sexual assault and Title IX. They started out on common ground.
Casey: “Would you agree with me that the problem, and that’s an understatement in my judgment, that the problem of sexual assault on college campuses is a significant problem that we should take action on?” Casey asked.
DeVos: “Senator, thank you for that question. I agree with you that sexual assault in any form or in any place is a problem. And no disagreement there.”
Then Casey drilled down to the possible shift in policy.
Casey: “I ask you, would you uphold that 2011 Title IX guidance as it relates to sexual assault on campus?”
DeVos: “Senator, I know that there’s a lot of conflicting ideas and opinions around that guidance, and if confirmed I would look forward to working with you and your colleagues and understand the range of opinions and understand the issues from the higher ed institutions that are charged with resolving these and addressing them. And I would look forward to working together to find some resolutions.”
Casey: “I agree with the guidance. So I’m just asking for a yes or no. I guess you’re not going to give me a yes or no answer on committing to upholding that guidance.”
DeVos: “It would be premature for me to do that today.”
Casey also asked DeVos whether she would commit to retaining the “preponderance” standard for colleges to resolve sexual assault cases in internal school proceedings. DeVos sidestepped.
“Let me just say my mom’s heart is really piqued on this issue,” she said. “Assault in any form is never okay, and I just want to be clear on that. And so, if confirmed, I look forward to understanding the past actions and current situation better, and to ensuring that the intent of the law is actually carried out in a way that recognizes both the victim, the rights of the victims, as well as those who are accused.”
Advocates for survivors of sexual assault sharply criticized DeVos’s answers.
“Before the department turned its attention to enforcing survivors’ Title IX rights, schools routinely ignored their rights and swept sexual assault under the rug,” said the activist group Know Your IX. “If Ms. DeVos revokes the department’s critical work, she would make it harder for students to learn their rights — and easier for schools to violate them.”
Others were heartened by her response.
“It’s obviously a very complicated topic. I’m glad that she’s interested in looking further into it,” Robert Shibley, executive director of the Foundation for Individual Rights in Education, said Wednesday. Shibley’s group believes that the 2011 OCR letter represented an overreach of federal authority, potentially undermining the rights of accused students to defend themselves against sexual assault allegations.
In another exchange in the hearing, Sen. Patty Murray (D-Wash.) pressed DeVos about the 2005 video that surfaced last October during the presidential campaign, in which Trump bragged to a television show host about kissing and groping women and trying to have sex with them.
“If this behavior — kissing and touching women and girls without their consent — happened in a school, would you consider it a sexual assault?” Murray asked.
“Yes,” DeVos said.
Then Murray pushed DeVos to pledge that she would not seek to “rein in” OCR in its handling of sexual assault issues.
DeVos: “Senator, if confirmed, I commit that I will be looking very closely at how this has been regulated and handled, and with great sensitivity to those who are victims, and also considering perpetrators as well. But please know that I am very sensitive to this.”
On Wednesday afternoon, OCR made public its latest list of colleges that are under investigation for their handling of Title IX issues related to sexual violence. The list encompasses 223 schools, with 304 pending investigations.