Why we still need Obama-era sexual assault policy


Jenna Moldaver, Voices Editor

On Thursday afternoon, U.S. Secretary of Education Betsy DeVos added to the hotbed of nationwide unrest when she revealed in an interview with CBS that she intends to overturn the Obama administration’s Title IX sexual assault guidelines. With guards still up from the administration’s news on DACA earlier in the week, Trump opponents reacted vehemently to the federal attack on the law that requires schools to respond fairly and promptly to sexual assault allegations. But it wasn’t only angry individuals who vocalized concern. Soon after this, Vanderbilt released via email words of affirmation that distanced itself from the controversial statement that had already sparked controversy across the country.

“We want to assure you that Vanderbilt’s commitment to fighting campus sexual assault and to holding perpetrators accountable has not and will not change,” Provost Susan Wente stated in the email, which went out to students, staff and faculty across campus.  At least for me, this direct, immediate response allayed the fear that change in federal legislation would inevitably lead to change in campus policy.

In this email, Vanderbilt plainly indicates that the loosening of Title IX guidelines at the federal level will not influence the attitudes nor the practices of the university in regard to sexual assault. So we can breathe a sigh of relief, right? Not quite. Unless we’re satisfied with taking shelter in our bubble of administrative competency and shielding ourselves from the realities that will soon penetrate colleges across America, we cannot rest easy. Vanderbilt’s stance might hold firm in the face of these political changes, but at other institutions, Title IX is the only thing holding administrations accountable.

DeVos’ attack on Title IX is dangerous mostly because it threatens to unravel the means by which campus authorities are effectively able to discipline perpetrators of sexual assault. Six and a half years ago, Obama’s Dear Colleague Letter mandated that school administrators were to use the preponderance standard in dealing with allegations of sexual assault. This essentially states that disciplinary action should be taken against the accused if the assault most likely occurred. The standard differs from that of criminal cases, where evidence must be proved beyond a reasonable doubt. This method of adjudication was controversial long before DeVos stepped in. Because the preponderance standard requires a lower threshold of evidence, critics asserted that Obama’s guidelines enabled colleges to infringe upon the rights of the accused by opening a window for false accusations and wrongful convictions.

While this makes some sense, it is unrealistic to hold universities to the same standard as criminal courts. Universities do not have the same authority as legal institutions; they cannot issue warrants for arrest, summon witnesses, or change venues. Essentially, the standard upheld by criminal courts is simply too demanding for college sexual assault hearings. In a perfect world, universities would comply with the beyond a reasonable doubt standard, and their disciplinary hearings would measure up to those conducted in the highest caliber of criminal courts.

But this is not a perfect world. This is a world where 11% of college students, and nearly a quarter of female college students, are sexually assaulted. And within the parameters of this reality, the preponderance standard is the best we have. It is not intended to replace the criminal justice system. But as the past six and a half years have demonstrated, it is a system that makes possible the administration of discipline at the university level, encouraging students to report violence and promote campus safety in a way that a tighter policy could not.

Yet Title IX opponents still call to their defense a narrative of false accusations, destroyed reputations, and disciplinary injustice in college sexual assault cases. However, this problem of false sexual assault allegations is not nearly as prevalent as it is portrayed to be. According to a study conducted by the National Center for the Prosecution of Violence Against Women, false accusations occur at a rate of only about 2-8%. So the foundation on which DeVos has built her strategy, an assumption that the accused are so often innocent, is largely a myth. And the idea that sexual assault allegations have taken on some witch-hunt resemblance, with accusations delivered liberally and loosely, seems impossible considering that more than 80 percent of campus assaults go unreported.

Still, though, we might not immediately consider DeVos’ rejection of the preponderance standard a radical position. DeVos does claim that she will approach the process of revision as “a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way.”  And after all, she is challenging a legislation that has always been faced with dissent. But we need to take this attack on the rights of sexual assault victims in context, specifically in the context of this administration’s approach to sexual assault in the past.

The Trump administration has insensitively approached the issue of sexual assault from the beginning, with Candice Jackson, Deputy Assistant Secretary for Strategic Operations and Outreach in the Office for Civil Rights and the top civil rights official at the Department of Education, telling the New York Times that 90 percent of accusations  “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.’” This dismissive statement trivializes the incredibly difficult and brave decision victims make to come forward in pursuit of justice. It sets a precedent. Rather than empowering victims to speak up about their experiences, Jackson encourages the opposite.

And DeVos’ comments aren’t much better.

Any perceived offense can become a full-blown Title IX investigation,” DeVos said in a speech at George Mason University on Thursday. This suggests an issue of overreaction, insinuating that universities investigate more cases than actually exist. But that simply isn’t grounded in reality; in fact, the opposite is true. Because so few victims report, there are far fewer investigations than crimes, and the decision to rewrite Title IX is largely unwarranted. Even if DeVos has the purest intention of facilitating bipartisan equity, of extending her hand across the political aisle to create a law that is the most fair to the greatest number of people, she sure hasn’t helped that case in the past. The administration’s discourse surrounding sexual assault mainly underplays its severity and casts doubt upon its victims. Because of this, we have no reason to believe its loyalties lie with them.

I remain hopeful that after adhering to the expectations of Title IX for the past six and half years, universities across the country have come to appreciate its values, and whatever federal regulation that emerges from DeVos’ changes will be met with resistance at administrative levels. I am hopeful that students at universities who have yet to open inboxes to comforting statements from school administrators will soon be given this offer of reassurance. And, lastly, I am hopeful that no matter what comes of this political decision, victims of sexual assault will know they are supported in however they react to the crime that was committed against them.