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Will rules on investigating college sexual assault be dialed back?

August 8, 2017 at 6:25 PM EDT
Secretary of Education Betsy DeVos is considering dialing down federal guidance for how colleges and universities should handle sexual misconduct investigations. The Obama administration issued new requirements in 2011 changing how schools should handle investigations on their campuses, drawing both praise and criticism. William Brangham learns more from Anya Kamenetz of NPR.
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JUDY WOODRUFF: Next tonight, we turn to one of the most controversial issues in higher education today, sexual assault on college campuses.

The U.S. secretary of education, Betsy DeVos, is considering dialing down federal guidance for how colleges and universities should handle sexual misconduct investigations. It’s a move that’s dividing school administrators, survivors and even the accused.

That’s the topic for our weekly education segment, Making the Grade.

Our William Brangham has more.

WILLIAM BRANGHAM: We’re talking about the interpretation of Title IX. That’s the 1972 law meant to prohibit sexual discrimination at federally funded schools and colleges.

In 2011, the Obama administration issued new requirements for how those schools should handle investigations into sexual assaults on their campuses.

Survivors and advocates had long argued that administrators weren’t doing enough to deal with an epidemic of these assaults. A 2016 Justice Department survey showed that one in five women said they’d been sexually assaulted in college. The Obama administration wanted to address that.

Here’s how then Education Secretary Arne Duncan described their effort:

ARNE DUNCAN, Former U.S. Education Secretary: Today, for the first time ever, an administration is releasing guidance under Title IX of the Education Amendment of 1972 explaining how schools and colleges should deal with sexual violence.

WILLIAM BRANGHAM: One of the more controversial changes was that the department urged schools to now use a lower standard of evidence in investigating these cases, using a — quote — “preponderance of evidence” that a sexual attack had occurred.

Schools began changing their policies. Those that didn’t were threatened with the loss of federal funding. Victim advocates, like Fatima Goss Graves of the National Women’s Law Center, celebrated the new guidance.

FATIMA GOSS GRAVES, National Women’s Law Center: Forty-five years after Title IX first banned sex discrimination in education, you finally have colleges and universities paying more attention, trying to take the steps that are necessary to have campuses that are safer, and to ensure that sexual assault isn’t an issue that’s just swept under the rug.

WILLIAM BRANGHAM: But others, like Cynthia Garrett of Families Advocating Campus Equality, argue that the increased pressure on schools tipped the scales of justice against the accused.

CYNTHIA GARRETT, Families Advocating Campus Equality: I think that the guidance that Obama — the Obama administration issued went too far the other way. And, as a result, there are colleges terrified to rule in favor of accused students or find them not responsible.

WILLIAM BRANGHAM: Taking a fresh look at the rules, last month, new Education Secretary Betsy DeVos convened listening sessions with sexual assault survivors, school administrators, and even students who’d been accused of sexual violence.

BETSY DEVOS, U.S. Education Secretary: No student should feel the scales are tipped against him or her. We need to get this right.

WILLIAM BRANGHAM: Critics rallied outside the department’s headquarters, demanding DeVos not rescind the Title IX guidance from the Obama years.

Adding to the controversy, Candice Jackson, DeVos’ acting head of the Office for Civil Rights, said that nearly all sexual assault allegations fall into the category of — quote — “We were both drunk, we broke up, and six months later I found myself under a Title IX investigation.”

Jackson later apologized for her comments.

Survivors and their advocates fear this sentiment signals that the department will rescind the 2011 guidance or simply not enforce it.

Michelle Anderson is the president of Brooklyn College.

MICHELLE ANDERSON, President, Brooklyn College: If Betsy DeVos rescinds the 2011 guidance, campuses are left adrift about how to respond to the mandates of Title IX. And the campuses need that guidance in order to perform effectively, in order to respond to the needs of students.

WILLIAM BRANGHAM: There’s no sign yet as to what the Department of Education plans to do.

For more on all this, we turn to Anya Kamenetz. She’s the lead education writer for NPR.

Welcome back to the NewsHour.

ANYA KAMENETZ, NPR: Thanks, William.

WILLIAM BRANGHAM: So, before we get into the nitty-gritty of this, the cases that we’re talking about here, the assault cases, are an allegation where one student has made against another student, and it’s the schools, not law enforcement, that are adjudicating this.

ANYA KAMENETZ: Yes.

And a lot of people feel like that’s really the heart of the issue, because the Obama administration’s guidance was attempting to get schools, colleges, to take a stronger stance in adjudicating these claims.

And a lot of people might say, well, shouldn’t that be law enforcement’s problem? But the argument was that, under Title IX, this is a civil rights matter, because it has to do with female students and other victims’ ability to have equal access to educational opportunity.

Schools might say, well, we don’t have the infrastructure to necessarily investigate these claims or the fact-finding. And then some critics of the policy as well from outside say, yes, there’s not necessarily the same standards of evidence for an investigation when a school looks at a claim vs. law enforcement.

WILLIAM BRANGHAM: And the criticism of what the Obama administration did was that by tying these investigations to federal money, and by lowering the evidentiary standard, that you’re basically making a very strong incentive for schools to convict someone who is accused.

ANYA KAMENETZ: Right.

So, with this statement, the Obama administration sort of created a national standard of preponderance of the evidence. Some colleges have used that standard before, but the bottom line is, they’re forcing a compliance mentality on the colleges by saying, we think that, in order to be good colleges with regard to sexual violence, that you have to follow these rules, one, two, three.

Some victims’ advocates were very much in favor of that. And others, including some legal scholars, said this is overreach by the federal government. That’s certainly the position that DeVos and the Trump administration seem to be taking.

WILLIAM BRANGHAM: Currently, are schools and universities happy with this circumstance?

ANYA KAMENETZ: I think that there’s a variety of opinions.

Unfortunately, sexual violence is endemic on campuses. And so the feeling among colleges is, nobody wants to be singled out. And so some might say that having a single standard of investigation and what the federal government considers to be a strong standard, then colleges can point to that and say, we’re in compliance, we’re doing the right thing.

Other colleges might say — resent having this thrust upon them. And it’s hard to say where colleges might fall on that.

WILLIAM BRANGHAM: So, we don’t know exactly what Betsy DeVos and the current Education Department is going to do, but kids are going to start going to college pretty soon now. What do you think that this whole conversation is going to mean for them going forward?

ANYA KAMENETZ: I think the messaging around this is really important, because, ultimately, sexual violence, it claims victims. It’s a common situation, unfortunately, common on campuses, but it’s also a school climate issue.

It has to do with how a young woman and even a young man feels about what party they’re going to go to. If they’re going to be doing a certain activity after hours, can they walk alone? And I think that those safety issues are going to be on students’ minds as they go back to campus, and certainly on parents’ minds as well.

WILLIAM BRANGHAM: All right, Anya Kamenetz of NPR, thank you so much.

ANYA KAMENETZ: Thank you.

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