Saying the Obama administration “weaponized” the U.S. Education Department’s Office of Civil Rights to work against students and schools, U.S. Education Secretary Betsy DeVos on Thursday said she would replace the current approach to addressing sexual misconduct on college campuses with “a workable, effective and fair system” that more explicitly takes into account the rights of the accused.
DeVos said the Trump administration would roll back Obama’s “failed” Title IX guidance on sexual assault and harassment.
Educators, she said, have complained that the current system amounts in many cases to “kangaroo courts,” in which the rights of the accused are given short shrift unless they can afford to hire legal representation to pursue complaints.
“No student should be forced to sue their way to due process,” she said.
The speech, delivered at George Mason University's Antonin Scalia Law School, was livestreamed on the department's Facebook page.
DeVos gave a measure of credit to the Obama administration, saying it “helped elevate this issue in American public life — they listened to survivors, who have brought this issue out of the back rooms of student life offices and into the light of day.”
The Obama administration's 2011 "Dear Colleague" Letter threatened to pull funding from schools that didn't take sexual assault and harassment seriously. Victims' rights advocates
But the 2014 guidance that resulted from Obama's efforts has applied an ambiguous and overly broad definition of sexual assault and harassment, DeVos said, leading to "intimidation and coercion of schools" and, in a few cases, strange results: In one case, she said, a school opened a Title IX investigation after a male student who couldn't remember the name of a female instructor filled in a form with the name "Sarah Jackson," a lingerie and swimsuit model.
“Any perceived offense can become a full-blown Title IX investigation," DeVos said. "But if everything is harassment, nothing is.”
In a statement, National Education Association President Lily Eskelsen García said educators nationwide "are appalled that the Department of Education has decided to weaken protections for students who survive campus sexual assault or harassment. This decision offends our collective conscience and conflicts with the basic values of equality, safety, and respect that we teach our students every day."
Eskelsen García called the proposed change "another example of a Trump-DeVos agenda that scorns respect for survivors, including Secretary DeVos’s own recent meeting with radical anti-woman activists and the president’s own recorded sexual assault confession during the campaign.”
Sarah Warbelow, legal director for the Human Rights Campaign, said DeVos' announcement suggested "that she would prefer to take America back to a time when it was more difficult for survivors of sexual assault to receive justice. For the LGBTQ community, which faces disproportionate levels of sexual assault and violence, this decision sends a strong signal that the U.S. Department of Education will not use its full power to protect them from harm."
Philadelphia attorneys Gina Maisto Smith and Leslie Gomez have said universities understand Title IX's high-level mandates but are getting tripped up on the mechanics. Schools lack the resources and the tools, including subpoena power — that can harm students on both sides of an investigation.
The pair have proposed universities utilize a network of regional centers, formed through partnerships between schools and law enforcement, that "could be a significant resource for resolving reports of misconduct that violate both Title IX and state criminal law."
Maisto Smith and Gomez, former career prosecutors who spent decades advocating for survivors — and whose damning investigation in 2016 into sexual assault allegations at Baylor University led to the ouster of former independent counsel Kenneth W. Starr as president — said both universities and law enforcement face challenges responding to sexual violence.
"Unless we engage in meaningful cultural and process changes, these challenges will persist," Smith said.
Brett Sokolow, executive director of the Association of Title IX Administrators, a professional association that helps schools ensure Title IX compliance, said DeVos' announcement doesn’t mean most universities won’t continue to address sexual violence on campus.
"The response will occur mostly at the margins, Sokolow said. "There are 20% of colleges that weren't all that committed to Title IX to begin with, and this is going to give them the excuse to pull back. But for 80% of the colleges out there that aren't at the margins, this is a cultural shift that's already taken place, and they're smart enough to understand that a rollback of sub-regulatory guidance doesn't change the fundamentals of Title IX that have been in place for 45 years."
DeVos has made a priority of revamping Title IX guidance, saying last July that the department should more equally weigh the claims of assault victims and the due-process rights of the accused.
But her department's efforts have also brought unwanted notoriety. In an interview last July, Candice Jackson, DeVos’ assistant secretary for civil rights, said 90% of campus sexual assault claims “fall into the category of, 'We were both drunk, we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.'"
Jackson later apologized for the remark, calling it "flippant."
Last June, the U.S. Commission on Civil Rights voted to open a two-year investigation of the Trump administration's civil rights enforcement, particularly related to the education department under DeVos. The commission's chair is Catherine Lhamon, who oversaw civil rights under Obama's education department.