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By "Rewriting" Title IX, DeVos Means "Eviscerating"

The Education secretary is a devotee of Trump's philosophy of grifting and punching down. So why would we be shocked that she's protecting rapists and not assault victims?
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Yesterday, Education secretary Betsy DeVos announced that she will be “rewriting” the Obama-era rules on campus sexual assault—and by “rewriting” she means “eviscerating,” which is totally in line with everything else she has done thus far.

If you wanted to design the perfect cabinet member—one completely emblematic of the Trump philosophy of grifting hard and always punching down—you’d likely come up with Betsy DeVos. The mega-rich sister of Blackwater founder and mercenary army enthusiast Erik Prince, DeVos is a legitimately terrible person in her own right, having spent the pre-Trump era propping up failing charter schools in the name of “school reform.” She is also a conservative Christian who believes that her zeal for that school reform is a way of “advancing God’s kingdom” which is, frankly, terrifying. 

Since she ascended to the secretary role, she has stopped processing student loan forgiveness applications where students were defrauded by their (usually for-profit) schools; ended a partnership with the Consumer Financial Protection Bureau where the CFPB and the DOE shared information about private companies involved in federal school aid; picked a former dean of DeVry University, a school that recently paid $100 million to settle a case with the Federal Trade Commission over claims it misled students by using fake employment statistics, to head the DOE’s higher education fraud investigation squad; quashed regulations designed to end abuses by predatory for-profit colleges; met with men's’ rights activists; and last but not least, hired someone who said that 90 percent of all campus sexual assault accusations fall into the category of “we were both drunk.”

Which brings us to yesterday, when Betsy DeVos went in front of the a campus chapter of the Federalist Society, an organization best known for being a pipeline for incredibly conservative judges, to explain how she’d be undoing all the progress in policing campus sexual assault that had been made under Obama.

Conservatives have been mad for years about the fact that in 2011, Obama’s Department of Education issued what is called a “Dear Colleague” letter about campus sexual assault. (Dear Colleague letters provide guidance from the DOE to schools on a variety of issues.) That letter explained the bleak reality of campus sexual assault: One in five women are victims while in college, along with roughly 6 percent of men. It isn’t at all an exaggeration to call it an epidemic. The really path-breaking thing about the letter, though, was that it framed the sexual assault epidemic as something that should be addressed via an expansive view of Title IX.

Title IX, broadly, prohibits discrimination on the basis of sex. No one can be excluded from participation in, or subjected to discrimination under, any education program if that program receives federal aid. And, though conservatives routinely mock the use of Title IX for these purposes, it is clear that you cannot fully participate in your educational program if your rapist remains on campus without consequence. You cannot fully participate in your educational program if your school is a hostile environment. Obama realized this, and set out to use the limited tools he had at his disposal to fix it.

After the Dear Colleague letter was issued, colleges were required to take steps to end incidences of sexual violence, prevent that violence from recurring, and address the effects of that violence, even if there was no criminal complaint. They were also required to take steps to protect the complainant and create a grievance procedure to address claims of sex discrimination generally and sexual violence in particular.

Any grievance procedure a school set up was required to have an equal opportunity for both sides to present witnesses and evidence and was also required to have some form of appeal. What angered conservatives most of all, however, was that the school’s procedures had to use a “preponderance of the evidence” standard.

Preponderance of the evidence is the standard often used in civil cases in the United States, where “beyond a reasonable doubt” is what is always used in criminal cases. It makes sense that school-level proceedings regarding sexual assault would use the former and not the latter, because those proceedings are not actually criminal proceedings.

Students can be disciplined or expelled as a result of these proceedings, but they cannot, obviously, be put in jail. Yes, expulsion is serious, and having your name made public as someone expelled for sexual assault is serious, but any equating of that with actual criminal charges is incredibly disingenuous.

It seems like this viewpoint should be a relatively non-controversial thing and an obvious one: Of course schools shouldn’t be obliged to use the evidentiary standard of criminal cases, but it made conservatives furious, and DeVos tapped into that in yesterday’s announcement when she explained that the real culprit here wasn’t rapists. It was the government.

“Through intimidation and coercion, the failed system has clearly pushed schools to overreach. With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.”

This is peak conservative grievance: the belief that if anyone other than the privileged are receiving the barest modicum of rights, that somehow means the world is off-kilter and unfair. It’s also peak conservative doublethink: The real victims here are the people that sexually assault other people rather than the people who are actually assaulted.

DeVos is spinning this as if she is just setting things right, restoring a natural balance, stopping government overreach. Except there was never a natural balance where rapist and victim are concerned. It has always, always tilted toward the rapist. DeVos's proposed method of hearings would cement that tilt toward the perp by forcing victims to reveal the entirety of their sexual history if they elect to pursue a hearing through the college. She proposed this even though inquiring about a victim's sexual history is a practice that is actually prohibited in criminal settings. Worse, universities have been almost unrelentingly terrible about addressing sexual assault. A mind-boggling 95 percent of campus sexual assaults are never even reported, much less dealt with effectively by schools.

Obama took action via a Dear Colleague letter both because this is the sort of thing that Dear Colleague letters are designed for and because it was clear that, left to their own devices, schools weren’t going to do enough—or do anything—to effectively combat sexual assault or to discipline or expel perpetrators. For a few years, schools were required to be assiduous about addressing claims of sexual assault rather than being entirely able to sweep things under the rug.

Under Betsy DeVos and Donald Trump, that era is over.

 

Lisa Needham is an attorney who has worked in the areas of First Amendment, education, and labor law. She is the deputy editor of Lawyerist, where she writes about access to justice and diversity in the law, and a contributor to Rewire, where she writes about LGBTQ and reproductive-health legal issues. She is ride or die for Dionne Warwick, Doris Day, and the Oxford comma. Follow her: @snipy
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