Secretary DeVos Takes Aim at Civil Rights Protections for Survivors of Campus Sexual Assault

  Published on July 28, 2017 by Teri Rosenberg

By Mary Haviland and Michael Fagan


The events of the past weeks at the U.S. Department of Education are very troubling for those of us who have worked to reduce the number of sexual assaults on college campuses.  Last Thursday, Education Secretary Betsy DeVos met privately with survivors of sexual assault, representatives of educational institutions, as well as students accused of sexual assault and their families, as part of an effort to re-examine the Education Department’s policies to combat sexual assault on campus – protections strengthened during the Obama Administration.  Those protections under Title IX, the federal law that prohibits discrimination in education based on gender, required colleges to better respond to survivors and do more to protect students against campus sexual assault.


More troubling has been the words and actions of Candice Jackson, the Acting Assistant Secretary for Civil Rights at the Department of Education, who was named to her position in April by President Donald Trump.  She made the jaw dropping statement that of the Department of Education’s nearly 500 open Title IX sexual assault complaint investigations, “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…”  She provided no data to back up this claim, and was forced later to apologize.


According to a survey conducted by the Association of American Universities in 2015, nearly one in four female undergraduates reported experiencing an incidence of sexual assault or misconduct during their college years.  As an indication that campus sexual assaults are significantly underreported, the same survey found that between five and twenty-eight percent actually report the assault to campus officials or law enforcement.


One of the ways for a student to make a report is to the school’s Title IX office.  Among other things, under Title IX, the school is required to have an established procedure for handling these reports, conduct a prompt and fair investigation for the reporting and accused students, and provide interim safety measures for the reporting individual if requested.


Only if the reporting student believes the school has failed to uphold the rights under Title IX, and then files a Title IX complaint, does it actually reach the U.S. Department of Education as a Title IX complaint, representing a miniscule fraction of the sexual assaults taking place on campus.


Under policies implemented during the Obama Administration, when a Title IX complaint did reach the Department, as part of their investigation, staff of the Office of Civil Rights required the school under investigation to submit three years of past complaint data/files to determine whether the college or university was complying with Title IX and taking seriously its obligation to thoroughly investigate allegations of sexual assault and protect the survivor.  This data provided the Department with a window into possible patterns of neglect by schools – what better way to see how schools are handling these issues than to look at actual data.  And importantly, it gave the Department a vehicle for requiring schools to take corrective measures and more broadly, protect future survivors and possibly implement preventive measures to reduce sexual assaults on campus.


These policies put in place a powerful accountability tool that made colleges and universities sit up and take notice. At stake are millions of dollars of aid that they receive from the federal government each year. Not to mention that they are entrusted with the education and safety of our young people.


With a stroke of pen, Ms. Jackson struck down the ability of Office of Civil Rights staff to hold colleges accountable by looking at three years of data. In a memo to staff, the Office of Civil Rights will only apply a systemic approach when “the individual complaint allegations themselves raise systemic or class action issues,” or the investigative team determines that there may be a systemic issue through conversations with the complainant. So instead of relying upon a data driven approach to understand what is happening on a given college campus, Ms. Jackson will require the complainant, who has allegedly experienced a sexual assault, to make the case for systemic problems on campus.  The same complainants she disparaged and dismissed in her comments this past week.


In New York, we are fortunate to have one of the most aggressive policies in the country to combat campus sexual assault.  Governor Andrew Cuomo signed “Enough is Enough” into law in July 2015.  The law requires all colleges and universities across New York to adopt a set of comprehensive procedures and guidelines that includes a uniform definition of affirmative consent and expanded access to law enforcement.  Acknowledging the importance of data and follow through, in May of this year, Governor Cuomo ordered a comprehensive review of compliance under the “Enough Is Enough” law.  The evaluation will include a review of the policies and procedures of colleges and universities across the state to ensure compliance with the law.


At the New York City Alliance Against Sexual Assault, we have been part of the effort to help colleges and universities meet the state and federal requirements. The Alliance leads a state-wide Working Group which issued written recommendations on responding and preventing sexual assault on campuses that has gone out to all Title IX Coordinators in New York State.  Secondly, the Alliance launched its campus program including the Campus Training Institute (CTI), which provides training programs designed to address sexual violence from an intersectional and trauma-informed perspective. In the first year of this program ending April 2017, Alliance staff conducted 53 trainings at 12 campuses, a student summit, and major presentations reaching over 3,000 campus staff, administrators, students, and rape crisis counselors.


We applaud the more than 30 Senators who sent a letter to Secretary Betsy DeVos condemning the limitations placed on the enforcement of civil rights laws.  In an era where Twitter seems to be the preferred mode of communication, we encourage the use of hashtag #DearBetsy, which was launched and popularized by the groups Know Your IX and End Rape On Campus, to share personal stories about campus sexual assault and the importance of Title IX.


Too much has been accomplished to address campus sexual violence to go back now.  There are constructive ways policies can be improved, but they should be data driven and draw upon best practices like those taking place in New York.


(Mary Haviland is the Executive Director of the New York City Alliance Against Sexual Assault, and Michael Fagan, Communications Committee Chair of its Board, is a former Communications Officer for Sexual Exploitation and Abuse at the United Nations and former Deputy Commissioner at the New York City Administration for Children’s Services.)