How Sexual Assault Policy On Campus Is Changing Under Trump

Education Secretary Betsy DeVos listens to a question during a student town hall at National Constitution Center in Philadelphia.

From now until Election Day, The Brian Lehrer Show is hosting a series called “30 Issues in 30 Days.” The idea is to dive deep on one issue a day to give voters a sense of what candidates are saying about the policies that affect their lives. Next up: How is sexual assault policy on campus changing under Trump?

Some of the debate over the confirmation of Supreme Court Justice Brett Kavanaugh and Dr. Christine Blasey Ford came down to what the standard of proof should be when someone is accused of sexual assault. After refusing to subpoena an alleged witness to testify under oath, Republicans decried the flimsiness of the “he said, she said,” debate, while protestors and Democrats argued that the multiple sexual assault allegations against Kavanaugh merited a thorough FBI investigation. Kavanaugh’s alleged crimes occured when he was in high school and college, and the accusations that nearly derailed his confirmation just so happened to coincide with a controversial plan to change the federal guidelines for how colleges and universities should judge those accusations.

What changes has Trump’s Education Secretary Betsy DeVos already made?

Back in 2011, the Obama administration advised universities to change how they were determining guilt in sexual misconduct cases from needing proof that was “beyond a reasonable doubt” to a “preponderance of evidence,” meaning just ‘more likely than not.’ The change was an attempt to relieve the burden of proof from survivors of sexual assault.

Since the new regulations were put in place, the number of investigations into schools rose dramatically.

In her first year of office as Secretary of Education, Betsy DeVos harshly criticized the previous administration for creating an atmosphere of “intimidation and coercion,” wherein universities would dole out harsh punishments for accusations that were not necessarily credible. Devos met with groups of men who felt they had been wrongly accused, and in 2017 she rescinded Obama’s guidelines and replaced them with temporary guidelines. Last month Atixa leaked a draft of the proposed finalized rules, the Education Department says are "still under development." Here are the main points of what’s coming (read a more detailed analysis of the rules here):

• The new guidelines will leave it up to schools to choose their OWN standards of evidence. They can choose the Obama-era “preponderance of evidence,” or “clear and convincing,” an evidentiary standard which requires more proof. The new rules also leave it to schools to decide whether to have an appeals process.
• The new rules also narrow the scope of crimes universities have to investigate. They will no longer be mandated to take on cases that happen off campus, and are only required to look at cases that have been reported through an “authority” figure.
• The new rules adopt a new Supreme Court definition of “sexual harassment” reserved for the most galling allegations. The new rules would define sexual harassment to mean “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” The Obama administration had it more broadly defined as “unwelcome conduct of a sexual nature,” that includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
• The new rules also encourage universities to used mediators, and allow for evidence sharing between accusers and defendants. They also allow for cross examination. The Obama administration had previously stated that contact between the two sides could result in intimidation and trauma.

The case for changes:

Those happy with DeVos’s changes argue that, in an attempt to correct an old problem (sexual assault on campus), the Obama administration over-corrected and created a new problem (doing away with due process and the rights of the accused.) Cynthia Garrett, attorney and co-president of Families advocating for Campus Equality, says her non-profit is currently working with 1,000 cases of people who were wrongly accused on campus, some of whom, she says, are suicidal. She applauds the DeVos changes for adding in more procedural protections: “[under the current guidelines], we don’t [do] evidence sharing, we don’t have a jury, we don’t have assistance of counsel and students don’t even have notice before they're questioned”.

She argues that in college, where the vast majority of cases are murky, where “both parties are drunk,” the current rules tell administrators that it’s a “zero-sum game,” and that one party has to be wrong and the other right. The Obama rules disregard the reality of “grey areas.”

The case against changes:

Advocates for victims argue that the new rules give more weight to the perpetrator’s education than the survivors. Under DeVos’s changes a school can dismiss a Title IX complaint if it does not meet the new, stricter definition of sexual harassment, even if the conduct is proved to be true. Sage Carson, manager of Know Your IX, a survivor- and youth-led project of Advocates for Youth, says the new rules would force victims to attend classes with their assaulters and would lead to victim drop out. Carson also takes issue with the fact that the new rules would not protect students who live off campus, where most students live. “The violence does not change whether it happens in a dorm room, or across the street at an unsanctioned fraternity house.”

Carson agrees that both victims and the accused need more procedural protections but argues it’s dishonest to think that’s DeVos goal. “If she really wanted to increase procedural protections, she would enforce the ones that are already in [Obama’s rules].” Carson worries the new administration is “out to reduce reporting rates on campuses by 30% and is looking to save schools money.” An analysis by The New York Times found that the new rules would save educational institutions millions of dollars over the next decade by reducing the number of mandated investigations.

For more, here's Brian Lehrer's segment: