Education Secretary Betsy DeVos’s new agenda for handling allegations of sexual assault is flunking out at colleges and universities across the country. Instead, many say they will continue to adhere to Obama administration guidance issued in 2011 that made it easier to punish alleged perpetrators.
Yale University, for example, said it has “no plans to deviate” from the Obama-era policies, after alumni urged campus administrators to resist changes. California State University-Northridge said it would “not waver in our commitment to Title IX and its protections.” Washington University in St. Louis also said it had “no intention of turning back on our commitment or resolve.”
Lisa Kirkpatrick, Title IX coordinator at St. Edward University in Texas, told the school’s student newspaper: “It’s business as usual, nothing has changed on this campus,” adding that campus standards “are less about the law and more about our mission.” President Thomas LeBlanc of George Washington University said the school has “no intention of removing the support currently in place for survivors of sexual assault.”
In a speech last month, DeVos announced she was rescinding Obama-era guidance issued under Title IX, a sweeping education anti-discrimination law. The guidance directed schools to adopt a lower threshold for establishing guilt in sexual assault cases; a “preponderance of evidence” was sufficient, the policy said, rather than “clear and convincing evidence.”
DeVos said the Obama policy tilted the process too far against the accused and denied them legal due process. But she did not immediately issue new guidance to replace the old. Instead she granted schools more flexibility to adopt their own standards while her department solicits comment from the many parties involved. It seems clear, though, that DeVos will instruct schools to adopt the “clear and convincing” standard for guilt.
She may face strong headwinds, to judge from a survey of schools for responses to her September speech. After initially chafing under the scrutiny, many college administrators embraced the Obama standard as a necessary response to what they see as a campus rape epidemic – and it’s hard to imagine those attitudes will change in the wake of the sexual misconduct revelations rocking American society in the wake of the Harvey Weinstein scandal.
The reaction so far is no surprise to Stuart Taylor Jr., co-author of a highly critical look at the Obama policies, “The Campus Rape Frenzy.” He said university leaders are “terrified” that if they appear receptive to change “they will be targeted for destruction by the ‘believe the woman’ activists in their own student bodies, bureaucracies.”
Taylor also noted that the assumptions and ideology behind the Obama policies originated in the academy, which he said “have for decades been permeated by the ‘rape culture’ ideologies of gender warriors such as Catherine MacKinnon.”
In addition, a hostility to the Trump administration in general and to DeVos in particular – especially for her criticism of public schools – predisposes school officials to oppose almost anything they propose. “The universities,” Stuart added, “are unlikely to change their guilt-presuming approach unless and until the federal government adopts very specific federal regulations requiring multiple procedural protections for accused students.”
DeVos could take an aggressive approach toward enforcing any new policies set forth by her department, which is exactly what the Obama administration did. At a 2014 meeting, Department of Education Assistant Secretary Catherine Lhamon told attendees that ending federal funding was not "an empty threat." Schools failing to comply with the administration's regulations would feel the government’s wrath, she said, implying that she had already issued such threats in several instances.
A 2013 study found the federal government spends $75.6 billion on higher education, including research grants and financial aid.
The Education Department, including its Office for Civil Rights, did not respond to numerous inquiries on how it will handle the schools' resistance.
While it’s unclear how tough DeVos will be in enforcing any new guidance, it is quite clear that many schools are not inclined to change their policies – even ones that have been tarnished by the way they have handled sexual assault cases.
In 2015, the University of Colorado Boulder settled with a student accused of sexual assault for $15,000. The school suspended him even though the accuser was caught lying extensively to investigators and told police she only made the accusation because she was “pissed off” at being subsequently rebuffed by the male student.
CU also settled with a philosophy professor who nearly lost his job after looking into how the school’s Office of Discrimination and Harassment “intentionally and systematically manipulated the evidence” in another campus sexual assault investigation.
Nevertheless, almost immediately after DeVos’s speech, Colorado’s Title IX coordinator, Valerie Simons announced: "There will be no immediate changes to either our sexual misconduct policy or our [Office of Institutional Equity and Compliance] policy."
Duke University, which drew withering criticism for the way it handled a 2006 case in which members of its lacrosse team were wrongfully accused of rape, also pledged to keep its current sexual assault policies.
“Our commitment to this issue of sexual assault on campuses and really trying to do everything that we can is firm,” said Valerie Ashby, dean of the school’s Trinity College of Arts & Sciences. “Right now we are staying where we are. We are as committed.” She also said the school feels “like what we have in place right now actually is a fair balance, so we aren’t going to go anywhere until we see what happens with rulemaking.”
Duke is currently being sued by at least one student who claims that an unfair and sloppy investigation led to his expulsion, costing him a lucrative job offer. He argued that administrators’ claims that when two students are equally drunk, only the man is responsible for getting consent, reflected gender bias. He also asserts that Duke trains its investigators to assume that all accusations are true, by pointing to misleading statistics that just 2 percent of rape claims (to police) are false.
Syracuse University defended Obama-era guidance even while facing a lawsuit filed by a student who was expelled after being accused of sexual assault. The two students in question had engaged in sex earlier, had made plans to meet up the night of the second encounter, which occurred after both had been drinking heavily—and which he says was consensual.
It’s not only institutions of higher learning that have vowed to resist the reforms DeVos has outlined. Several states have produced legislation to codify the Obama administration’s guidance, including Illinois and New York. At the federal level, Democrats introduced a bill that would turn the Obama guidance into law.
There are, however, a few outliers.
Oklahoma Wesleyan University President Everett Piper, a staunch critic of the Obama-era policies, said his school would no longer be pressured to “compromise” students’ rights.
One surprising response came in California where the state Legislature passed a bill aimed to codify Obama-era guidance. But it was vetoed by Gov. Jerry Brown, who cited concerns for due process and fairness. Brown had previously signed into a law a bill that made “yes means yes” the state consent standard – only on college campuses – but admitted in his recent statement that “thoughtful legal minds” have brought up concerns that such policies “unintentionally resulted in some colleges’ failure to uphold due process for accused students.”