In a speech at George Mason University in Arlington, Virginia, on Thursday, Secretary of Education Betsy DeVos lit into what she called “the current failed system” for handling accusations of campus sexual assault, and she announced a period of public comment that could lead to significant changes.
“There are men and women, boys and girls, who are survivors, and there are men and women, boys and girls who are wrongfully accused,” DeVos said in her speech. “I’ve met them personally. I’ve heard their stories. And the rights of one person can never be paramount to the rights of another.”
It was not immediately clear from DeVos’s speech whether the current guidance — issued in 2011— would remain in place during the review period. Late Thursday afternoon, Press Secretary Liz Hill confirmed that the 2011 guidance “will be replaced” and said the department will “make clear to schools how to fulfill their current obligations under Title IX” while it gathers public comment on new guidance.
“The Office for Civil Rights will work directly with schools to provide support and technical assistance,” Hill told ThinkProgress in a statement.
The Department of Education will publish a notice of proposed rulemaking and public comment in the Federal Register, though it’s not clear when.
Advocates for victims of sexual assault were quick to criticize DeVos’s speech. Fatima Goss Graves, president of the National Women’s Law Center, called it “a blunt attack on survivors of sexual assault.”
“It will discourage schools from taking steps to comply with the law—just at the moment when they are finally working to get it right,” Gross said in a statement
DeVos said that the Department of Education will open a period of public comment on a 2011 “Dear Colleague letter” that laid out colleges’ and universities’ obligations to investigate accusations of sexual assault under Title IX, the federal law that mandates gender equality at schools that receive federal funds. The department will consider alternate models proposed by former law enforcement officials, prosecutors, and law school professors, she said.
The Obama administration didn’t take public comments before issuing the current guidance in 2011—a move that is the subject of ongoing legal challenges that say the administration violated federal law and the guidance should be enjoined.
The speech left hundreds of Title IX complaints currently under investigation in a state of limbo, according to Seth Galanter, who was principal deputy assistant secretary in the Department of Education’s Office for Civil Rights from 2013 to 2017.
“[It] leaves open what will happen … while this regulatory process goes forward,” Galanter told ThinkProgress in a text message. “Also incoherent. She condemns Washington overreach but also seems to want to impose detailed regulations to fix the problems she described.”
Critics accuse the Obama administration of putting its thumb on the scales, tilting the process hopelessly against men accused of sexual assault. Andrew Miltenberg, of the Manhattan-based law firm Nesenoff & Miltenberg, has represented scores of men accused of sexual violence during campus investigations. He says the process is riddled with double standards that inevitably come down on the side of the accuser, creating an environment in which a man who is wrongfully accused has no chance of clearing his name.
“The guidance makes it so a school is virtually compelled, unofficially compelled, to find against a respondent. There is too much risk,” Miltenberg told ThinkProgress in an interview. “The risk arbitrage in finding in favor of a respondent doesn’t exist in these cases because of the guidance.”
Since June, DeVos has met with many of those critics—including men’s groups with a history of publicly shaming women who say they were sexually assaulted, questioning domestic violence laws, and equating rape survivors and men who say they’ve been falsely accused.
DeVos spoke out forcefully against campus sexual violence on Thursday, calling it “reprehensible, disgusting, and unacceptable” and vowing that “not one more survivor will be silenced.” But she also echoed many of the criticisms of the sexual assault prevention movement on college campuses. Under pressure from Washington, DeVos told the audience, universities have put policies in place that threaten accused people’s rights to due process and even freedom of speech.
“Schools have been compelled by Washington to enforce ambiguous and incredibly broad definitions of assault and harassment,” DeVos said. “Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes. Any perceived offense can become a full-blown Title IX investigation. But if everything is harassment, then nothing is.”
Advocates for survivors of sexual assault say Title IX and the 2011 guidance created an environment where accusations of sexual assault that had long been swept under the rug could begin to see the light of day and where survivors could begin to find justice. A ThinkProgress investigation into sexual assault at Gordon College, in Wenham, Mass., earlier this year found that the 2011 guidance and a subsequent letter from the Department of Education in 2014 spurred administrators to reform a Title IX process that students said failed to take their allegations of sexual assault seriously.
“Gordon College is not immune to the issues that face campuses across the country,” Gordon spokesperson Rick Sweeney told ThinkProgress in 2016, in response to that investigation. “We have taken significant steps forward over the past two years.”
The current guidance on Title IX also protects due process rights for both the accuser and the accused, and the Department of Education has penalized schools under the current guidance for violating the rights of the accused, according to Colby Bruno, senior legal counsel at the Boston-based Victim Rights Law Center. Like many advocates, Bruno believes the administration is preparing to undo policies that have made campuses safer for victims of sexual assault.
“Schools are safer, more educated and [Title IX] compliant,” Bruno told ThinkProgress in an email. “[H]ow is it that a federal administration would want to pull the plug on that?”