We’re eight months into the Trump administration and all signs point to an erosion of civil rights protections under Title IX for survivors of campus sexual assault.
In July, Secretary DeVos met privately with victims of sexual assault, representatives of educational institutions, as well as students accused of sexual assault and their families, to reexamine policies to combat sexual assault on campus. “This policy has not worked in too many ways and too many places,” she said after the meeting, adding, “We need to get it right.”
The meeting and comments sounded alarm bells among members of Congress, advocates and any of us who have worked for years to change policy that would result in decreasing sexual violence on campus.
One concern is that Secretary DeVos may find fault with the so-called preponderance of evidence standard in the adjudication of campus sexual assault. The standard was put in place under Title IX in 2011. Under it, evidence would have to show that “more likely than not” an incident occurred, rather than the “beyond a reasonable doubt” standard used in criminal cases.
The preponderance of evidence standard is used in other educational civil rights statutes, such as Title VI of the Civil Rights Act of 1964 prohibiting racial discrimination by educational institutions. It is also used in Title VII of the Civil Rights Act prohibiting discrimination in employment. Seventy percent of higher education institutions were already using the preponderance standard when the Office of Civil Rights began requiring its use in 2011. Most campuses use this standard for handling complaints of racial discrimination on campuses as well as other disciplinary infractions. To impose a higher standard of proof on sexual assault victims would require this class of victims to produce more evidence than those in other civil rights and disciplinary actions.
Another cause for concern: in May, the Education Department’s Office for Civil Rights eliminated the Obama administration directive that required a three-year look back on universities under investigation for Title IX complaints to ensure that the college or university was not engaging in systemic neglect of their obligations to thoroughly investigate allegations of sexual assault and protect the survivor.
In a reversal of this policy, staff now are required to look at past data only 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.
Instead of using a data driven approach to examine what is happening on a given college campus, the complainant must build a case for systemic problems — a large task for any college student, especially one who has allegedly experienced a sexual assault.
While it’s an imperfect solution to the gutting of federal civil rights protections for campus sexual assault victims, states have a role to play in protecting those victims and many states have stepped up to fill the void.
In 2015 Gov. Andrew M. Cuomo of New York introduced “Enough is Enough” and after passage by the N.Y. State Legislature, it has become one of the most aggressive laws in the country to combat campus sexual assault.
Colleges and universities across New York are required to adopt a set of comprehensive procedures and guidelines that include a uniform definition of affirmative consent, a bill of rights for students reporting sexual assault, domestic violence, or stalking, as well as due process requirements that ensure that the investigation and disciplinary adjudication of a case of sexual assault is fair to the accused student. This latter point addresses some of the concerns that Secretary DeVos has raised.
A comprehensive review is underway to ensure compliance with Enough Is Enough law. The New York City Alliance Against Sexual Assault and rape crisis centers across the state have been working on campus sexual assault for many years.
Due to Title IX and Enough is Enough, concern and policy changes by campuses across the state around this issue have accelerated. Most heartening, according to many individual campuses, reports by students have increased significantly. This is a direct result of greater awareness of campus sexual assault and the avenues available for survivors to report it, as well as increased confidence that perpetrators will be brought to justice.
Accountability and transparency measures like those conducted by New York were critical to the Education Department as well. Yet the department is contemplating changes that could put the brakes on the progress that has been made. New York and California were the earliest states to codify these protections. Connecticut and Illinois have followed suit.
It is not too late for Secretary DeVos to make informed changes to current Title IX policies based on data and best practices from the states. Organizations like the Alliance and New York’s Rape Crisis Centers stand ready to engage in productive dialogue to develop thoughtful policy.
We recommend that other states join those that have passed proactive legislation. In New York State, this required elected officials, students, campus administrators and rape crisis centers to come together to push for new state law. New York State can serve as a model for pursuing real change on this issue.
As in other areas, we have accomplished so much. We must stand ready at the state and local levels to take up the mantle of responsibility when our federal leaders and policy fall short.
Mary Haviland is the executive director of the New York City Alliance Against Sexual Assault, an umbrella organization of New York City rape crisis programs that strives to prevent sexual violence and reduce the harm it causes through education, research and advocacy.
Michael Fagan is the communications committee chair of the Alliance Board, a former communications officer for sexual exploitation and abuse at the United Nations and a former deputy commissioner at the New York City Administration for Children’s Services.