The Trump Administration’s Fraught Attempt to Address Campus Sexual Assault – The New Yorker

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Debates over policies to deal with sexual assault on college campuses
have been fraught in the best of circumstances. But under President
Donald Trump’s Administration, such debates bring with them a
particularly toxic backstory. There was, of course, the “Access
Hollywood” recording of Trump boasting about kissing and grabbing women
by their genitals without their consent, and at least a dozen women have
publicly accused him of sexually harassing or assaulting them. Many
people are understandably skeptical of policy moves on sexual misconduct
that may emerge from his Administration.

Education Secretary Betsy DeVos, no stranger to controversy herself, is
nonetheless stepping into this debate early in her tenure. She has
inherited legal controversies over the interpretation of Title IX, the
1972 law in which schools had to agree not to discriminate on the basis
of sex in order to receive federal funding. On Thursday, DeVos convened
a “listening session” at the Education Department on campus
sexual-assault allegations and due process. The idea was for DeVos to
spend the day hearing directly from sexual-assault victims, accused
perpetrators, and university presidents, general counsels, and academic
experts in closed sessions. (Disclosure: I was invited as an academic
expert but was unable to attend.)

While not open to reporters, the event had a high controversy quotient.
The list of the day’s participants was scrutinized, and victim’s
advocates denounced the inclusion of advocates for accused students and
a men’s-rights group that has been accused of harassing and intimidating
sexual-assault victims. At a rally outside the Education Department,
assault survivors urged DeVos not to abandon the commitment to Title IX
enforcement seen during the Obama years. Deepening the provocation, her
acting head of the Office for Civil Rights, Candice Jackson—a
sexual-assault survivor who supported the alleged victims of Bill
Clinton and called alleged victims of Donald Trump “fake victims”—had to
apologize for telling the Times, on the eve of the event, that “90
percent” of campus accusations amount to drunk or regretted breakup sex.
She was in the meetings with DeVos. At a news conference immediately
after the closed-door meetings, DeVos said that it was “a really
emotionally draining day.”

All this functioned as a bit of dramatic staging before the Education
Department’s forthcoming announcements of policy changes. Those changes
have been prefigured in Jackson’s criticisms of Obama-era policies.
Since the nineteen-nineties, the federal government has required schools
to set up grievance procedures so that students could bring complaints of sexual harassment.
But, in 2011, Obama’s Office for Civil Rights announced, in a
Dear Colleague letter, that it was interpreting Title IX to require
schools not only to investigate and adjudicate allegations of sexual
violence among students but also to abide by certain detailed policies
and procedures. Chief among these was that when adjudicating complaints
of sexual harassment or assault, schools must use a standard of a
“preponderance of the evidence” rather than the higher standard of
“clear and convincing evidence” that was then common in universities
(let alone the exceedingly high standard of “beyond a reasonable doubt”
used in criminal cases).

Reasonable people can debate these interpretations of Title IX. But the
2011 Dear Colleague letter was also controversial because it seemed to
impose new obligations on schools without going through the required
procedures of giving the public notice and the opportunity to comment
before the rules were implemented. Nonetheless, the agency began
invoking this document as if it were law, threatening schools with
defunding in order to get them to comply. The Office for Civil Rights, or O.C.R., opened, and for the
first time publicized, investigations into hundreds of schools for
noncompliance. Without fail, investigations produced “resolution
agreements” in which schools committed to revamp their policies and
procedures to be consistent with O.C.R.’s preferences. (For example,
Harvard Law School, where I teach, agreed to stop using the standard of
“clear and convincing evidence” when O.C.R. deemed the school to be in
violation of Title IX, in 2014.) Schools not under investigation also
overhauled their policies and procedures in preëmptive attempts to
please O.C.R. (Several pending federal lawsuits are challenging O.C.R.’s
process surrounding the 2011 Dear Colleague letter as a violation of the
Administrative Procedure Act.)

To many victim-advocacy groups, O.C.R.’s new pressure on schools was a
heroic strike for civil-rights enforcement that forced schools, at long
last, to take sexual violence seriously. But the powerful federal
pressure also created incentives to decide cases against accused
students, going beyond what O.C.R. wanted schools to do. In the past
several years, many courts have decided in favor of accused students and
against universities in lawsuits claiming that the schools’ adjudication
processes lacked basic components of fairness.

Accused students have successfully invoked Title IX itself in claiming
that the desire to demonstrate toughness on sexual assault led to
their unfair treatment as males. It’s clear that many schools’
frightened and clumsy first attempts to appease the government have
brought sometimes disastrously unfair results, and that under any new
Administration, a more refined second stage of reform would need to be

On the same day as Secretary DeVos’s listening event, Columbia
University announced a settlement with Paul Nungesser in his Title IX
lawsuit against the school. A fellow-student, Emma Sulkowicz, had
accused Nungesser of rape, in 2012, and when the school found him not
responsible, she protested by carrying a mattress around campus in a
performance-art project for which she received academic credit. A pariah
on campus as a result, Nungesser filed a gender-discrimination suit
against Columbia, alleging that the school abetted Sulkowicz’s and
others’ harassment of him. A federal district court in New York
dismissed the suit, in March, but Nungesser’s planned appeal to the
Second Circuit was sufficiently nerve-wracking that Columbia decided to
settle with him rather than fight on. In a statement, on Thursday,
Columbia stood by its finding that Nungesser did not rape Sulkowicz, and
recognized that “Paul’s remaining time at Columbia became very difficult
for him and not what Columbia would want any of its students to
experience.” It promised: “Columbia will continue to review and update
its policies toward ensuring that every student—accuser and accused,
including those like Paul who are found not responsible—is treated
respectfully and as a full member of the Columbia community.”

The explicit recognition of the need for fairness, and even respect, to
both the accuser and accused is emerging as a new talking point. Indeed,
that seemed to be a major purpose of DeVos’s Thursday event. About
accused students, DeVos said, “It was clear that their stories have not
often been told, and that there are lives that have been ruined and
lives that are lost in the process.” But, she said, “We can’t go back to
the days when allegations were swept under the rug . . . there was a
time when women were essentially dismissed. That is not acceptable.” The
mood of balance seemed even to influence Senator Kirsten Gillibrand,
known for strong advocacy for sexual-violence victims, when she said,
“The rights of the accused are just as important as the rights of

It will be difficult for some advocacy groups to see anything from this
Administration but an abandonment or a “rolling back” of civil rights.
It is unlikely, however, that DeVos will simply tell schools that they
can back off from investigating campus sexual-assault cases and turn
them over to law enforcement, or leave schools wholly to their own
devices in setting their rules—and she should not do that. She will
likely seek, more actively, to address the issue of unfairness in the
campus processes that dozens of courts have said are potential
violations of civil-rights law. “A system without due process ultimately
serves no one in the end,” DeVos has said. To some in this polarized
debate, however, “due process” can be a code for rape denial or
upholding rape culture. Concern for fairness for the accused is often
mistakenly conflated with implying that many rape accusations are false.
Fairness is important regardless of the truth or the falsehood of
allegations. It is unclear whether DeVos is equipped to make nuance
stick in this debate, and to make fair treatment of all parties
compatible with the responsibility of schools and government to address
sexual assault.

A common fear among victims’ advocates is that the Department will just
retract the 2011 Dear Colleague letter that advocates look upon as a
touchstone, just as the agency retracted the 2016 guidance on
transgender students earlier this year. But a withdrawal of the document
is sure to generate more controversy than leaving it in place and
treating it as the nonbinding guidance it purports to be. Jackson
suggested last month, in a speech to the National Association of College
and University Attorneys, that the agency would likely begin the legal
process of seeking public input in order to create properly binding
legal rules. The challenge for DeVos and Jackson, though, will be that
whatever intentions or rhetoric of due process and fairness may inform
the proposed changes, it will be close to impossible to get past the
taint of their boss.

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