Late last week, Secretary of Education Betsy DeVos announced that she intended to get rid of a 2011 Title IX guidance that reminded schools of their obligations to address sexual violence in schools promptly and fairly. While cloaked in a veil of procedure—DeVos announced the Department would seek notice and comment on a new policy—her agenda has been clear from the beginning (and not surprising given that she was appointed by a President who bragged about sexually assaulting women).
At her confirmation hearing, DeVos refused to commit to upholding the Title IX sexual violence guidance. One of the Department’s first actions was a cruel and heartless withdrawal of another Title IX guidance outlining transgender students’ rights to learn in a nondiscriminatory school environment; they face some of the highest rates of sexual violence. For months she ignored requests to meet with survivors while readily meeting with those who want to dismantle Title IX. Then in July, one day before she finally agreed to meet with survivors, her Acting Assistant Secretary for Civil Rights, Candice Jackson, showed us what’s really motivating the Department’s actions: She said that 90 percent of the cases she has seen don’t really involve sexual violence but rather regretted or drunken sex. (She later apologized – whatever.) And even when DeVos finally met with survivors for a mere 90 minutes, she spent most of the same day meeting with schools (whom she has a lot of sympathy for since they have to comply with civil rights laws, poor things) and men’s rights groups who are openly hostile to survivors and blame victims for the violence they suffer.
Fast forward to last Thursday when no survivor groups or Title IX advocates were invited to the event announcing changes in longstanding Title IX policy (I’m reminded of how children hide when they know they’ve done something wrong). Perhaps that’s because she knew that we would have called her out for not telling the truth. In particular, all of the examples she used to argue for a change in the law are already prohibited by the law: Not giving someone notice of the charges against them is a violation of Title IX, which also requires that both parties have access to relevant witnesses and evidence and are able to bring advocates or attorneys with them if the school allows them.
When schools don’t get the process right, for survivors or students accused of sexual assault, the answer is to help them follow the rules, not change the rules. Ensuring a fair process for everyone is critical. I will never forget the powerful moment in the listening session I attended when survivors told DeVos that they want (and Title IX already requires) a fair process for themselves and those accused. And while there has been a lot of talk about due process, what hasn’t been mentioned is that Title IX provides those accused of sexual assault with more protection than what the Supreme Court has required for due process.
But these facts just get in the way of DeVos’ agenda. Her actions have pulled the rug out from under survivors across the country—from elementary to graduate school—who are already blamed, shamed and punished for coming forward. She wants to tilt the balanced scale of Title IX in favor of students accused of sexual assault, which will send survivors back into the shadows and make it harder for them to stay in school. And why, you may ask, is the Department singling out sexual assault for this special treatment? After all, schools handle all kinds of similar issues routinely (assault and battery, theft, etc.) that involve making tough determinations and that may also involve separate criminal charges. Think back to Candice Jackson’s words that revealed what she really thought. It’s because they don’t think survivors are credible and they don’t value their access to education as much as that of students accused of sexual assault (it’s worth noting that even when students are found responsible for sexual assault, they are expelled from school in fewer than one-third of cases).
But here’s the good news: Title IX is still the law of the land. No action by DeVos can change that. Students still have the same rights they did before, and schools are already stepping up to say they will continue to do the right thing, even if the Secretary of Education will not. And we at the National Women’s Law Center are more committed than ever to fight on all fronts to ensure that students can learn in an environment free from sexual violence.