Beyond the headlines: How all sides are working together on campus sexual assault rules
Groups involved in protecting the rights of victims and the accused are seeking other avenues, such as state legislation, to address fairness in enforcement
—Sexual assault survivors have been trying to get a meeting with Betsy DeVos since she was confirmed as Education Secretary. Thursday, they got their wish – but with a catch: The secretary would be spending equal time with men’s rights groups who believe the issue is overblown or that too many innocent people have had their rights trampled.
It’s been a difficult six months for those trying to defend strong enforcement of Title IX – the civil rights law that, for this generation, has become synonymous with addressing sexual harassment and violence.
Consider: The Education Department’s Office of Civil Rights has rescinded guidance on transgender rights in schools, and it has stepped back from systemic investigations of Title IX violations on campuses, it says to reduce backlogs. If Congress cuts the Education budget, as proposed, it would mean fewer people to investigate allegations. And a public list of schools under investigation for violating Title IX, set up during the Obama administration, may be discontinued.
Campus lawyers and groups that represent falsely accused students, on the other hand, have been relieved to gain more seats at the table as Ms. DeVos considers possible changes to how the law will be enforced.
Headlines, especially this week, tend to emphasize the warring sides. But underneath that narrative, there’s a vast array of people willing to work together – often across partisan lines and professional silos – to help colleges address a complex problem that doesn’t start or end at their gates. And even if some protections are rolled back under the Trump administration, experts say, that would be unlikely to put the brakes on progress toward changing the culture and reducing sexual assault among young people.
At the state level, that's already yielded at least 27 laws on campus sexual assault since the start of 2015, according to the Education Commission of the States. “We’re seeing legislation … in blue, purple, and red states alike. Equal educational access and ending violence against women is not a partisan issue,” says Sejal Singh, a policy and advocacy coordinator for Know Your IX.
And many campuses are motivated to go beyond compliance as they see not only students, but even athletic coaches, demanding it.
“A lot of institutions have internalized Title IX to the point that, even if the federal government pulls a foot off the gas pedal, there’s a feeling that strong intervention is going to be necessary,” says Peter Lake, a Title IX expert and leader of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. “There's a tremendous undercurrent of energy and support of combating discrimination on campus.”
“If there is a crosscurrent ... it’s due process,” he adds, referring to the way allegations of sexual misconduct cases are resolved. “That’s probably what will emerge most clearly from this period – let’s not forget about respondents’ rights.” The Education Department's OCR did address due process during Obama’s tenure as well, he says, but the issue has been gaining steam.
Seeking consensus on what’s fair
When Cynthia Garrett joined an American Bar Association (ABA) task force to recommend how colleges can ensure due process, she was sure she wanted a change in the standard of evidence that colleges are expected to apply. But her perspective shifted.
Under OCR’s landmark 2011 “Dear Colleague” letter clarifying how schools should implement Title IX, they were told to use a “preponderance of the evidence” standard. In other words, that means an official or disciplinary body needs to be just over 50 percent sure an incident occurred.
It’s a typical standard in civil rights cases, and any higher bar of proof would tilt the advantage toward the accused, survivor advocates say. Many colleges were already using the preponderance standard, but some groups have objected strongly.
Ms. Garrett is the San Diego-based co-president of Families Advocating for Campus Equality, a network founded by parents whose children were deeply affected by what they characterize as false accusations and unfair procedures.
On the ABA task force, she worked with campus administrators, victims’ rights advocates, and other attorneys. “The most amazing part is that we were able to come up with a consensus of recommendations for due process,” she says.
Garrett found her stance on the evidence standard softening. “Because we included so many other due process provisions … I became more comfortable with it,” she says.
She shared the task force’s report with Candice Jackson, the Education Department's acting assistant secretary for civil rights. Garrett spoke to the Monitor before appearing on one of the Thursday roundtables alongside representatives of Stop Abusive and Violent Environments (SAVE) and the National Coalition for Men.
Survivors’ rights advocates say such groups perpetuate the notion that women routinely make false rape accusations (something research has shown is rare) or report people simply because the regret a drunken hookup. Acting Assistant Secretary Jackson added to that narrative with a remark suggesting such cases were prevalent, in a New York Times interview Wednesday, for which she later apologized. She also noted that she herself is a rape survivor.
It’s possible that new guidance will supplant the 2011 "Dear Colleague" letter. After Thursday’s meeting, DeVos told reporters that the current policy “has not worked in too many ways and too many places, and we need to get it right.”
While survivors' advocates are anticipating rollbacks, some say they were at least encouraged to be part of the dialogue. “What we really got from it was that she was hearing what we were saying,” and that she would continue to listen, says Chardonnay Madkins, who attended as project manager of the survivors’ rights group End Rape on Campus (EROC).
States step in with more legislation
In the meantime, campus activists are doubling down on efforts to create state laws.
So far in 2017, 15 states have considered legislation, with nine laws passed and 24 pending.
One new law in Texas assures students they can report sexual assault without fear of punishment for infractions such as underage drinking.
A 2015 Illinois law required comprehensive plans from colleges and included Title IX type provisions, “so all survivors have those rights protected no matter what happens federally,” says EROC managing director Jess Davidson.
As a student, Ms. Singh says she worked to change policies at Columbia University in New York that discouraged rape survivors, such as allowing campus officials with conflicts of interests – deans who could take donations, for instance – to decide appeals.
When she and others around the state didn’t see enough response from administrators, they took the fight to the legislature.
The resulting New York law passed in 2015, the year Singh graduated. It “required my school to make changes we’ve been demanding for a long time.”
Getting at root causes
In some cases, a wide range of stakeholders are asking legislatures to slow down rather than pass misinformed laws.
New Jersey lawmakers were considering a number of related bills, including one that would have required all campus sexual assault reports to automatically trigger law-enforcement involvement.
That drew criticism from the New Jersey Coalition Against Sexual Assault, on the grounds that it’s important for victims to be able to choose when and how they report, and what remedies to pursue. The coalition helped persuade the legislature to set up a diverse task force to take a more holistic look at solutions.
Its report came out in June, and is starting to get attention from other states.
In addition to agreeing there should be no mandate of law enforcement involvement, the report addressed some lawmakers’ impulse to push for "dry" campuses, showing that there’s no research proving that prohibiting alcohol would reduce rates of sexual violence.
“Alcohol doesn’t rape,” says Patricia Teffenhart, executive director of the coalition and co-chair of the task force. “Sexual violence is caused by learned behaviors and unacceptable attitudes…. We need to get at the root of what makes someone thinks that’s acceptable.”
On a growing number of campuses, students expect administrators to face sexual violence head on.
“Regardless of what might be happening politically at OCR … our students are very committed to this issue,” says Felicia McGinty, vice chancellor for student affairs at Rutgers University in New Brunswick, N.J., which shared some of its successful policies with the task force. “This is not about compliance. This is about commitment.”