It looks likely that Trump administration Education Secretary Betsy DeVos will make major changes to the Obama administration Education Department’s “Dear Colleague” letter of 2011 that all but required colleges to tilt their sexual-assault disciplinary procedures in favor of accusers–in the name of enforcing Title IX, the federal law that forbids sex discrimination by educational institutions receiving federal funds.
And that is raising quite a few hackles among advocacy groups that seem to think that every agency document—or at least every agency document they like– ought to have the force of a law, passed by Congress. And their strategy seems to be to launch a series of pre-emptive strikes that they hope will ensure will keep that "Dear Colleague" letter around forever.
On July 13 DeVos held a day-long, closed-door "listening sessions" centered around the 2011 letter from the department's Office of Civil Rights. The sessions are clearly aimed at responding to criticisms of the letter made by lawyers and free-speech advocates. For example, the letter requires colleges to use a "preponderance of evidence" ("more likely than not") standard of proof when deciding whether an assault occurred–instead of the "beyond a reasonable doubt" standard used in criminal sex-assault cases, or the "clear and convincing" standard used by many institutions before 2011. The letter also allows a student who accuses another student of assault to appeal a finding that goes against her–essentially placing accused students in double jeopardy as well as potentially esposing them to an endless series of hearings until the tribunal finally rules in favor of the accuser. The letter also doesn't seem to distinguish between actual sexual harassment and mere speech. These criticisms seem fair enough, and it would certainly seem possible for a college to take a firm stand against campus rape while still protecting the due-process rights of the accused rapists.
But the mere idea of any changes of any kind to the letter seems to have provoked quite a backlash.
For one thing, even before this first session, in which DeVos met with the anti-rape activists backing the letter as it now stands, they complained vociferously that her second session would involve meetings with critics of the letter–that is, to say, groups such as the National Coalition for Men and SAVE (Stop Abusive and Violent Environments,). The Chronicle of Higher Education reports:
While sexual-assault victims would have 90 minutes to share their stories and concerns with Ms. DeVos, students who say they were falsely accused of rape would have an equal amount of time with the secretary. A third meeting would feature college lawyers, many of whom have criticized how onerous recent federal Title IX enforcement has been….
Also, leaders of one prominent advocacy group, Know Your IX, said they were abruptly excluded from the meeting with Ms. DeVos. Sejal Singh, a policy and advocacy coordinator with the group, said they had been "assured" they would be invited. But after Know Your IX’s founders wrote an op-ed in The Washington Post that criticized [OCR} chief Candice Jackson for suggesting that the civil-rights office would no longer publish a list of colleges under Title IX investigation, the group never heard back from the department, Ms. Singh said.
Jackson had called the list a "list of shame"–which actually seemed a pretty fair characterization, since it's not usual for law-enforcement agencies to publish lists of mere possible suspects.
So Know Your IX and other organizations staged a rally ouside the Education Department building that drew about 50 attendees, the Chronicle reports.
Maybe many colleges will continue to do the right thing, regardless of what federal enforcement looks like, said Ms. Singh, of Know Your IX. But that doesn’t mean she and her peers are going to let the "Dear Colleague" letter go easily.
Ms. DeVos must understand "that the Department of Education’s enforcement is a necessary tool to make sure that the opportunity to learn is upheld," Ms. Singh said.
Now,, it didn't help that Jackson, before the meetings, made a joking remark to the New York Times about campus-rape complaints: "[T]he accusations — 90 percent of them — 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.’"
But although the crack, for which Jackson promptly apologized, might have been flippant, there is a kernel of truth to it: There has been a series of successful lawsuits against colleges brought by students alleging false findings of rape when the sex was actually consensual.
Meanwhile, DeVos is calling on Congress to clarity whether Title IX's "sex discrimination" ban is even supposed to include sexual assault.