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Betsy DeVos’s Title IX interpretation is an attack on sexual assault survivors

Key moments from Education Secretary Betsy DeVos's announcement Sept. 7 of changes to the process of addressing sexual assault at schools and universities (Video: The Washington Post, Photo: J. Lawler Duggan/The Washington Post)

We were both college students back in 2011 when the Department of Education released a “Dear Colleague” letter reminding educators of a fact long established by the Supreme Court: Under Title IX, schools must ensure that survivors of sexual assault can stay in school and learn safely. We read that letter and knew, for the first time, that our government took seriously our civil right to an education free from sexual violence — and would demand our schools do so, too.

Thursday, Secretary of Education Betsy DeVos revoked that promise to student survivors.

To an invitation-only audience at George Mason University, closed to the students who protested her expected announcement outside, she declared that the Obama administration had gone too far, protecting student survivors to the detriment of the accused. The Education Department, she indicated, will reverse course through a technical process called “notice-and-comment.” If that sounds innocuous, it’s not. Rather, it’s a signal that the Trump administration will make way for what is nothing less than an all-out attack on survivors.

[Alcohol isn’t the cause of campus sexual assault. Men are.]

The 2011 letter set out specifically that “sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.” It empowered campus sexual assault survivors like us to walk into meetings with school officials knowing that colleges couldn’t push us to withdraw from school until our perpetrators graduated. (One of us was told to drop out of school until her rapist finished his degree.) Our schools had to provide us the accommodations we needed to stay in school, such as free counseling, and help students switch out of class sections shared with the individuals charged with assaulting them. The letter outlined our right to learn alongside our peers, making clear to our schools that they could no longer count on our ignorance keeping us in the shadows.

In DeVos’s only meeting with sexual assault survivors, which one of us attended, we spoke about the importance of the Dear Colleague letter for student survivors like us. DeVos’s office has been flooded with comments urging retention of the policy outlined in the Dear Colleague letter. When she spoke Thursday, she misled, saying “Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved” — making it clear that her listening tour was for show and that she plans to make policy based on an unrepresentative portion of the feedback she’s received.

DeVos also misrepresented the guidance itself, arguing that the Dear Colleague letter gutted due process protections for the accused. That’s false. The letter reaffirms schools’ obligation to provide for the rights of all parties involved in campus sexual assault cases and already requires many of the protections critics demand. DeVos said that under the current system, accused students are denied proper notice of the accusation and access to the evidence against them. But those practices are expressly forbidden by the Dear Colleague letter, which plainly states: “the parties must have an equal opportunity to present relevant witnesses and other evidence. The complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing.” DeVos decried schools’ lack of appellate options, but the Dear Colleague letter expressly “recommends that schools provide an appeals process.”

[I’m a college president. Betsy DeVos should help me deal with campus sexual assault.]

That makes the letter a profound resource for students accused of sexual misconduct, providing them with clearer and more robust federal protections than students accused of many non-sexual offenses. If schools are failing to live up to their legal obligations to accused students, the solution is for the Education Department to enforce those obligations, not undermine them. That’s what the Obama administration did when it found Wesley College out of compliance with Title IX for denying a student the time and information necessary to defend himself from a complaint that he had taped a classmate having sex without her knowledge or consent.

The demand for safety and women’s equality in education used to be bipartisan. A Republican administration signed Title IX into law in 1972. Republicans and Democrats alike have issued policies and regulations to effectuate Title IX’s equality mandate. And Supreme Court justices appointed by presidents on both sides of the aisle have reaffirmed schools’ obligations to ensure that sexual violence doesn’t get in the way of a student’s right to learn alongside her male peers.

Perhaps it should come as no surprise that this latest undermining of survivors’ rights is taking place under the administration of a president who has bragged about sexually assaulting women. An administration in which the acting assistant secretary of education for civil rights, Candice Jackson, suggested, in July (she later apologized), that for “90 percent” of campus sexual assault allegations the complainants regretted having sex, but weren’t actually sexually assaulted. As part of her supposed fact-finding on Title IX, DeVos met with the National Coalition for Men, a group that, Pacific Standard reported in 2014, published the photos and contact information of survivors online.

The good news is that over the last few years, a tremendous movement of Title IX champions — students and lawyers, teachers and legislators, many of them survivors — have come together to fight for victims’ civil rights. We’re better organized than this administration. And if the Education Department rolls back survivors’ rights, we’re ready to fight them in court, in Congress and in the streets.