Speaking to a crowd at George Mason University’s Antonin Scalia Law School earlier this month, Secretary of Education Betsy DeVos announced that she plans to end the Obama administration’s Title IX guidelines concerning how colleges and universities should handle sexual assault. DeVos called the current process a “failed system” and declared that “the era of rule by letter is over,” referring to the 2011 Dear Colleague Letter that laid out the obligations colleges and universities have in preventing and handling campus-based sexual harassment and sexual violence under Title IX, the federal law that prohibits sex-based discrimination in schools. She claimed the Obama administration’s guidance has “weaponized the Office for Civil Rights to work against schools and against students,” and criticized the procedures used by universities to investigate sexual assault for being too hard on accused sexual offenders.

While she gave lip service to victims of sexual assault, DeVos devoted much of her speech to highlighting the plight of students who have been “wrongly accused” of sexual misconduct—a group she referred to as “victims of a lack of due process.” Echoing Donald Trump’s “both sides” narrative surrounding white supremacist violence, DeVos described a system that she said created “victims” on both sides. To illustrate this false equivalency, DeVos offered up a series of anecdotes conveying the grossly inaccurate notion that false reports of sexual violence are just as common as sexual violence itself.

In reality, false reports of sexual violence are rare, comprising between two and 10 percent of reported sexual assaults, while victimization and underreporting of sexual violence are pervasive problems. An estimated one in five women is sexually assaulted during college, but only five to 10 percent of those cases are reported to campus authorities or law enforcement, and just one percent of assailants are disciplined through university or criminal proceedings.

It was statistics like these, combined with a documented pattern of widespread mishandling and underreporting of campus sexual assault cases by U.S. colleges and universities—brought to light by survivors and student activists—that prompted the Obama administration to issue the updated Title IX guidance in the first place.


HOLDING SCHOOLS ACCOUNTABLE
Passed in 1972, Title IX prohibits discrimination and harassment of students and employees based on sex (gender). While sexual violence had been established as an issue of gender discrimination through case law, the Obama administration clarified in the 2011 Dear Colleague Letter and again in follow-up guidance in 2014 that Title IX covers sexual harassment and sexual violence.

The guidance itself is not law. Rather, it tells schools how the Department of Education will review issues related to Title IX compliance and specifies that schools have a legal responsibility to combat sexual violence. It also states that failure to take appropriate steps to protect students from sexual harassment, assault and rape could result in a loss of federal funding.

DeVos used nearly her entire speech to talk about individual sexual assault investigations, but this is only one aspect of the soon-to-be rescinded guidance. Under Title IX, schools are required to respond to and remedy “hostile educational environments.” This, of course, includes properly investigating reports of sexual assault and taking disciplinary action when appropriate, but it also includes protections such as providing accommodations to ensure students’ safety—for example, a student may need to change classrooms or move to a new dormitory in order to avoid contact with an assailant. Many sexual assault survivors will suffer psychological consequences that may require mental health counseling, and Title IX requires schools to provide adequate services. Despite what DeVos implied, punishment is only one of many outcomes that victims may choose to pursue. Often, students who are sexually assaulted may need help with something as simple as turning in an assignment a few days past the deadline.

Title IX also includes guidance for creating an environment that is conducive to reporting. Among other things, it prohibits schools from attempting to dissuade students from reporting incidents of sexual violence or retaliating against students who do so. Additional requirements include providing training for employees who handle reports of sexual assault, hiring a Title IX coordinator to oversee issues related to compliance and identify patterns of non-compliance and other systematic problems, as well as taking proactive steps such as implementing educational and prevention programs.

The Dear Colleague Letter is far from perfect, but it represented an important step in the right direction. According to a report by the American Association for University Women (AAUW), 91 percent of U.S. colleges and universities reported zero incidents of sexual violence in 2014. As AAUW noted, this figure doesn’t reflect the prevalence of sexual violence on college campuses. Rather, it reflects a widespread failure to report it. The guidance released by the Obama administration forced schools to confront this problem. By rescinding it, DeVos is telling colleges and universities that they won’t be held accountable if they fail to take sexual assault seriously.


TIPPING THE SCALES
DeVos’ speech was peppered with misconceptions and misinformation about Title IX, including the notion that the Dear Colleague Letter lowered the standard of evidence that schools must use to resolve investigations of sexual assault. This has been a contentious issue since the 2011 guidance was released, particularly among right-wing media pundits and culture warriors. DeVos dedicated a good part of her speech to the controversy, calling the Title IX mandate the “lowest standard of proof” and decrying university misconduct hearings as “kangaroo courts.”

“Through intimidation and coercion […] Washington dictated that schools must use the lowest standard of proof,” DeVos said. “The notion that a school must diminish due process rights to better serve the ‘victim’ only creates more victims.”

The preponderance of the evidence (POE) standard specified in the 2011 Dear Colleague Letter is actually the same standard that the Department of Education has enforced for at least two decades. The Obama administration didn’t change that. Rather, it clarified to schools that this standard must be used for all Title IX proceedings, including cases of sexual violence. According to the POE standard, schools should rule in favor of the student who brought the complaint if most of the evidence supports such a finding. Even before the 2011 directive, an estimated eight in 10 universities were already applying the POE standard for sexual violence cases. The same standard is used in almost all civil trials, including those involving sexual violence victims who sue their assailant in a court of law. Criminal cases that could result in jail time apply a higher standard of evidence, but Title IX has nothing to do with criminal law—nor should it.

While DeVos approvingly cited statements from legal scholars who have criticized the Title IX guidance or its implementation by universities, she failed to mention how many scholars and legal groups agree that the POE standard is not only proper, but necessary to ensure that universities protect and value the rights of students who have historically been unprotected, undervalued, excluded or otherwise marginalized.

Last year, more than 90 law professors from at least 50 different universities signed a white paper defending the POE standard as being in accordance with existing civil rights law. Applying a higher standard of evidence to Title IX sexual assault cases would mean “treating sexual violence and harassment victims differently from all other victims of all other discrimination prohibited under our nation’s anti-discrimination civil rights laws, and [doing] so without any justification for that differentiation,” they wrote.

The National Women’s Law Center issued a strong defense of the current standard specified under Title IX guidelines, arguing that applying a heightened standard of evidence to sexual assault cases would “prioritize accused students over alleged victims and create too much room for the very biases, including credibility-robbing rape myths, that Title IX is intended to address.”

DeVos, however, is concerned about just the opposite. In her speech, she repeatedly claimed that the POE standard is biased against students accused of sexual misconduct—an assertion that is simply not true. The POE is the only standard of evidence that places both the accuser and the accused on a level playing field and treats both sides as equally credible and worthy. (And as some have noted, the Dear Colleague Letter actually extended additional rights—beyond what the Supreme Court requires—to those accused of sexual misconduct).

“The POE holds the two sides’ relative stakes and competing narratives in equipoise, while a higher proof standard judges one side’s interests and likely credibility to be greater than the other,” law professor Deborah Brake wrote in a May 2017 research paper.

Brake argues that the controversy over the standard of proof is not so much about the merits of the issue, but rather about who we view as credible and deserving of empathy—survivors of sexual assault or those accused of it—and how seriously we should pursue allegations of sexual misconduct. The reason this issue is so contentious, Brake writes, is not because of the (likely negligible) impact on misconduct rulings, but because it serves as a proxy for the culture war surrounding rape and sexual assault.

On this fault line, DeVos made her position quite clear: She’s fighting for the rights of the accused—at the expense of their accusers.


ADVOCATE FOR THE ACCUSED
As Think Progress reported in January, “the DeVos family foundation has long donated to organizations that frequently side with students accused of rape and sexual abuse,” including the Foundation for Individual Rights in Education (FIRE). The group, which offers legal services to accused rapists but not to their accusers, has long fought against efforts to strengthen campus sexual assault policies, citing concerns about due process. When DeVos was confirmed as Secretary of Education, FIRE noted in a statement that they were already challenging the legality of the 2011 Dear Colleague Letter, which they referred to as “administrative overreach.” FIRE has also downplayed the statistics on campus sexual assault, saying they’re a product of feminist culture run amok. An article posted on their website attributes many cases of sexual violence to “alcohol-fueled” mistakes or simple “miscommunication”—“but no criminal coercion.”
In July, DeVos convened a meeting to discuss the future of campus sexual assault policies. The meeting was divided into three “listening sessions,” one of which was devoted entirely to men’s rights activists and other groups advocating for those who say they’ve been falsely accused of sexual misconduct. Those in attendance included representatives from the National Coalition for Men, SAVE: Stop Abusive and Violent Environments, and Families Advocating for Campus Equality (FACE).

The National Coalition for Men is a men’s rights group best known for publishing the names and photos of Title IX complainants under the label “false accusers.” FACE is an organization founded by mothers of sons who were accused of sexual misconduct in college. The website, which describes accused students as “Title IX’s other victims,” says allegations of sexual assault are “frequently made by angry former girlfriends” and result in an “unimaginable nightmare” and “emotional trauma similar to that of rape victims.” SAVE is described by the Southern Poverty Law Center as a men’s rights group that aims “to roll back services for victims of domestic abuse and penalties for their tormentors, while working to return the focus to the ‘true victims of abuse’—the falsely accused.” In a document decrying the suggestion that sexual assault victims are not serial liars, SAVE compares victim-centered investigations to the “hysteria” over alleged Satanic child abuse that swept the nation in the 1980s. On their Facebook page, SAVE regularly shares articles from men’s rights groups hostile to sexual assault victims, feminists, and women’s rights in general.

Posts from the Facebook page of SAVE, one of the men’s rights groups that DeVos asked to weigh in on the future of Title IX sexual assault protections.

So these groups aren’t just advocating for the accused—they’re actively hostile towards victims’ rights. But that didn’t stop DeVos from inviting them to the table to get their input on how the Department of Education should address campus sexual assault prevention and adjudication.

As C.D. Mock, Director of Public Affairs for the National Coalition for Men, wrote in August, the men’s rights group used their time with DeVos to highlight cases involving students who said they were falsely accused of sexual misconduct:

“Last month, our organization brought a contingent of college students to meet with Education Secretary Betsy DeVos during a listening session for students falsely accused of sexual misconduct. Students recounted how they were presumed guilty by their university, often not notified of the allegations brought against them and in some cases not provided the identity of their accusers. They also related how they were pressured by the university to admit wrongdoing even in the face of evidence that pointed to their innocence.

Accused college students have been denied fundamental due process rights such as witnesses appearing on their behalf, the introduction of exculpatory evidence, and the ability to question or cross examine the accuser’s account. Equally troubling is that, with young lives hanging in the balance, attorneys are often barred from fully participating in university Title IX hearings.

The cases shared with Secretary DeVos represent a small sampling of the approximately 180+ lawsuits filed against universities in which student plaintiffs allege being denied due process, subjected to ‘kangaroo court’ tribunals complete with rubber-stamped expulsions as a direct result of university fear of OCR reprisal.”

The testimony apparently made quite an impression on DeVos—so much so that she appears to have lifted the major themes of her speech straight from materials provided by advocates for the accused. In some instances, DeVos even seemed to regurgitate claims made by attorneys suing the government over Title IX.

See for yourself—compare these quotes from DeVos’ speech with quotes from groups and attorneys advocating for students accused of sexual misconduct:

DeVos: “Schools have been compelled by Washington to enforce ambiguous and incredibly broad definitions of assault and harassment.” FIRE: “[M]any colleges already enforce vague and overly broad sexual harassment policies.”
FIRE:Overly broad or vaguely constructed definitions of sexual harassment have served as a consistent justification for abuses of student free speech…”
Neal v. Colorado: Since its enactment, the 2011 Dear Colleague Letter has aggressively dictated how colleges handle sexual assault and sexual harassment on campus, by laying out specific requirements that schools must adopt and utilize…and promulgating an overly broad definition of sexual harassment.

DeVos: “Punishing speech protected by the First Amendment trivializes actual harassment.”
SAVE: “Overly broad definitions threaten to trivialize the seriousness of sexual assault…”

DeVos: “The current approach does a disservice to everyone involved.”
FIRE: “Colleges…are failing all parties involved.”

DeVos: “The results of the current approach? Everyone loses.”
SAVE: “Under the current system, everyone loses.”

DeVos: “No one benefits from a system that does not have the public’s trust—not survivors, not accused students, not institutions and not the public.”
FIRE: “No one is happy with the way campuses currently deal with sexual harassment, sexual violence, and rape—not victims, not the accused, not parents or loved ones, not administrators, not university counsel, not defense attorneys, not civil liberties advocates, and not the general public.”

DeVos: “[T]he prior administration weaponized the Office for Civil Rights to work against schools and against students.”
FIRE: “Anti-harassment codes have long been the most frequently used weapon on campus for silencing dissenting, unwanted, or merely inconvenient speech.”

DeVos: “Washington dictated that schools must use the lowest standard of proof.” FIRE: “The Department of Education’s Office for Civil Rights required in a letter issued last April that institutions adopt our judiciary’s lowest standard of proof…”
FIRE: “Under OCR’s new requirement to use the lowest standard of evidence, due process protections in the judicial systems of nearly every college and university in the United States have been forced to their lowest levels yet.”
FIRE: “The Department of Education’s Office for Civil Rights has also mandated the use of our nation’s lowest standard of evidence.”
FIRE: “OCR magnifies these deficiencies by requiring our judiciary’s lowest standard of evidence…”

“It’s no wonder so many call these proceedings ‘kangaroo courts,’” Devos concluded.

There aren’t actually that many people who call campus misconduct hearings “kangaroo courts”—and almost all who do are advocates for the accused:

Clockwise, from top Left: 1. A Georgia lawmaker) fighting against Title IX on behalf of accused students; 2. An article by the director of public affairs for National Coalition for Men; 3. Facebook page of SAVE, a men’s rights group that advocates for students accused of sexual misconduct; 4. SAVE’s website.

That’s not all, though: The anecdotes DeVos used to demonstrate how Title IX has “failed” students appear to have been derived largely from lawsuits filed against schools that failed to comply with Title IX.

In other words, she’s citing cases where schools failed to properly enforce Title IX as her rationale for rescinding Title IX’s guidance—the equivalent of rolling back seatbelt laws because someone who wasn’t wearing their seatbelt got injured in a car crash.


FALSE BALANCE
The point here is not that accused students shouldn’t have rights or that the flaws in the Dear Colleague Letter should be overlooked. There are legitimate concerns about how colleges are complying (or not) with Title IX, and these concerns should be dealt with by clarifying areas of ambiguity and providing assistance to schools and administrators involved in Title IX enforcement.

But none of this justifies undermining the civil rights of sexual assault victims to protect those who are accused of sexual misconduct—and let’s be clear: By revoking Title IX’s sexual assault protections, that’s exactly what DeVos is doing.

“The Trump administration says it wants fair procedures, but there’s nothing fair about refusing to enforce the rights of sexual assault survivors, which is the direction the Department of Education seems to be headed in,” Adele Kimmel, a senior attorney at Public Justice, said in a statement.

If DeVos wants to ensure justice for “both sides,” imposing a uniquely heavy burden on students who report sexual assault is not the way to do it. Rescinding the protections outlined in the Dear Colleague Letter is a misguided move that will take us backwards in the fight against sexual assault by tipping the scales even further in favor of the accused—and away from justice for survivors.