Breaking News Emails
Earlier this month, 80 people who said they were sexually abused by one of three doctors — Larry Nassar of Michigan State University, George Tyndall of the University of Southern California and Richard Strauss of Ohio State University — sent a letter to Education Secretary Betsy DeVos with a unified message: Don't give schools more control over how they investigate sexual assault allegations.
"The proposed changes will make schools even less safe for survivors and enable more perpetrators to commit sexual assault in schools without consequence," read the letter, which included names of women who attended the three schools.
(Nassar is serving a de facto life sentence after pleading guilty to sexual assault and child pornography charges; Tyndall has denied any allegations and has not been charged with a crime; and Strauss died in 2005 before he could be properly investigated.)
On Friday, following months of anticipation, DeVos released her proposal for how cases of sexual assault and misconduct should be handled, noting that "every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined."
While a 60-day public comment period is now in effect before the plan can be finalized, advocates for sexual assault survivors say they're worried that the guidelines would actually make campuses more dangerous, deter victims from coming forward and put them in traumatizing scenarios.
"It will return schools to a time where rape, assault and harassment were swept under the rug," said Jess Davidson, interim executive director of the group End Rape on Campus, adding that the proposal is "worse than we thought."
The proposal earned a harsh tweet Friday from Rep. Maxine Waters, D-Calif., who warned DeVos that she "won't get away with what you are doing."
The rules involve federal guidelines known as Title IX, which prohibit gender discrimination, including sexual assault, on college campuses as well as in primary and secondary schools.
Advocates for students accused of sexual misconduct have argued that some of the guidance under the Obama administration was unfair to the alleged perpetrators — prompting DeVos last year to rescind Obama's measure and pledge the Education Department would embark on a "workable, effective and fair system."
But Elizabeth Tang, a legal fellow at the National Women's Law Center in Washington, said the rules under DeVos' new proposals would be harmful to survivors while giving more deference to the accused.
Under Obama, the definition of sexual assault was less specific — described as "unwelcome conduct of a sexual nature."
The new definition would be narrower, requiring actions of misconduct to fall under certain categories, including "unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school's education program or activity."
The DeVos rules would also require that allegations are reported to officials who have the authority to take "corrective action," such as the school's Title IX coordinator, or for students in grades K-12, to a teacher. Critics point out that some students might feel more comfortable reporting to another adult whom they trust.
In addition, the alleged incident would only have to be investigated if it took place on campus or during a school-sponsored event. Critics note that assaults at off-campus parties or outside of bars could effectively be ignored by a school.
Once school officials are made aware of an allegation, it must be taken seriously, the guidelines state. But if a school acts "deliberately indifferent" toward a case, the Education Department would only have to punish it "if its response to sexual harassment is clearly unreasonable in light of the known circumstances."
Schools that don't adhere to Title IX requirements risk losing federal funding.
In another notable change, accused students will be given the presumption that they're innocent throughout the disciplinary process and have the right to be given all evidence collected against them. In addition, the accused would be able to cross-examine their accusers, although it must be done through a lawyer or representative.
"They're importing a criminal standard for civil rights proceedings. There shouldn't be a presumption one way or another," Tang said. "It only plays into this misconception that survivors are not to be believed and what happened is their fault."
Advocates for sexual assault survivors say it's already difficult to get victims to come forward.
According to the National Sexual Violence Resource Center, more than 90 percent of sexual assault victims on college campuses do not report an assault, and 89 percent of U.S. colleges reported zero incidents of rape in 2015 — an incredible statistic that illustrates how many victims likely stay in the shadows, experts say.
"We know it's so difficult to report, but we've especially seen it with the #MeToo stories in the past year, how difficult it can be for even adults," Tang said. "It's indefensible that we subject students and children to such a high bar to get any help from their schools."
DeVos' direction, however, is garnering praise from some individual liberties organizations, men's rights groups and Republican lawmakers who see it as striking a better balance between the rights of the accused and their accusers.
"The Department's approach seems to balance fairness and support for survivors," Sen. Lamar Alexander, R-Tenn., who chairs the Senate's education committee, said in a statement.
The Foundation for Individual Rights in Education, a civil liberties group that had criticized the guidance under the Obama administration, said it supports the cross-examination process as well as affording parties involved the opportunity to examine all of the evidence.
DeVos' guidelines would "protect the rights of accused students and uphold the integrity of the process," said Samantha Harris, the foundation's vice president for procedural advocacy.
But another civil liberties group, the ACLU, surprised some on Friday by tweeting that it is against DeVos' proposed new rules — arguing they "make schools less safe for survivors of sexual assault and harassment."