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Brief #29—Education

Policy Summary
Department of Education Secretary, Betsy DeVos, has released several new policies in regards to how US colleges and universities will treat allegations of sexual harassment and assault. DeVos claims the current system in place has “failed” and is a “shameful” method that has been unfair to the students suspected of alleged crimes. The proposed changes drastically shift attention to bolstering legal defenses for the accused. Many speculate that these changes echo feelings voiced by President Trump earlier in the year, when he tweeted, “Peoples lives are being shattered and destroyed by a mere allegation” and proposed that many men are unjustly assumed to be guilty. The new standards put in place by DeVos and the Trump administration will take the place of the Obama-era guidelines on how to apply Title IX, the law barring gender discrimination in schools that get federal funding. Title IX, approved as part of the Education Amendments of 1972, provides direct guidance and protocol for all manners of sex discrimination, including sexual assault, that would affect a student’s access to education.

Analysis

Many argue that DeVos’ planned changes not only  reduce educational institution’s legal responsibility in sexual assault cases, but also create a  large barrier between the rights of the accused students and possibly discouraging survivors from reporting any type of sexual assault and harassment.

Sexual assault continues to plague campuses across the nation. Recently polls have concluded that 25 percent of young women and 7 percent of young men say they suffered unwanted sexual incidents in college. Specifically, LGBT of students and female students of color encounter higher rates of sexual assault and harassment than the general student body. Even though a frighteningly high number of students experience some type of sexual harassment or abuse, the US government estimates that nearly 80 percent of student survivors choose not to report their assault, often out of fear of retribution or confidentiality worries. Undermining Title IX defenses may only make it harder for survivors to seek justice.

The Obama administration, defined sexual harassment as “unwelcome conduct of a sexual nature”. Secretary DeVos plans to alter the definition of sexual harassment to now be understood as “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 recipient’s education program or activity.” Many psychologists and victims’ rights advocates groups suggest DeVos’ amendments may deter survivors from reporting happenings, as they wonder what actions are “severe” or “offensive” enough to qualify as sexual harassment.

DeVos’ proposed rule could also give schools permission to discount particular Title IX protections, such as religious exemptions. Presently, universities and schools  are allowed to claim religious exemptions from certain Title IX provisions, such as counseling assistances or admissions of certain students. To do so, an institution must appeal specific exemptions from the U.S. Department of Education via letter or form. DeVos has referred to this procedure as “confusing or burdensome.”  The issue for many is that religious exemptions can be used to oppress LGBT students and to refuse women’s reproductive rights on the basis of religious objections. Therefore, without the U.S. Department of Education’s monitoring of each exemption it may become easier for religious colleges to discriminate against LGBTQ students.

A major issue with the new proposed ruling is how it would permit the educational body itself to decide on the burden of proof required for sexual assault cases. Formerly the burden of proof was decided using the preponderance of evidence standard. The preponderance of evidence standard, used under the Obama administration,  meant that educational institutions were instructed to admonish the accused party if evidence indicated that misconduct was more likely to have occurred than not. This standard is considered to be more in line with previous U.S. Supreme Court rulings related to violations of Title IX. Without using the preponderance of evidence standard, victims will have to go through even more to prove their claim, if the school will decide it is relevant at all.

At the moment, victims can report their sexual assault to anyone, school faculty or advisers. In return once an institution becomes aware of the situation they are required to examine the circumstances surrounding the potential assault. However, with the newly planned changes, a potential victim would have to report their assault directly to faculty “with authority to institute corrective measures”, in order for a school to be held liable for a Title IX violation, forcing victims to report to a limited number of individuals not of their choosing or with whom they may have no prior communication.

DeVos’s proposition also suggests that assaulted students and the accused students would be cross-examined, by advisers on behalf of the other individual. Cross-examination of this fashion is incredibly challenging and riddled with complications. The prospects of being cross-examined by an accused’s representative will likely silence many young assault victims. The situation is only made worse by the prospect of affluent students paying for available legal counsel or advocates while lower income students may not have such resources available to them.

Resistance Resources

The Department of Education under Secretary DeVos is making historic moves on Title IX protections. However there are a number of options still available to help halt the damage.

  • Congress can also proceed in passing theCampus Accountability and Safety Act, a bipartisan effort that develops the requirements on reporting sexual harassment, sexual assault, and related crimes on university or college property. The Bipartisan Campus Accountability and Safety Act (CASA) protect students and streamlines the response to and reporting of sexual assault. To join in on the fight to protect sexually assaulted or harassed students, click here: http://endrapeoncampus.org/passcasact/
  • SurvJustice is a national not-for-profit organization that increases the prospect of justice for all survivors of sexual violence through effective legal assistance, policy advocacy, and institutional training. Furthermore, SurvJustice wants CASA (above) changed so it adds an amendment to Section 202 of the Department of Education Organization Act, which would give the education secretary to have the power to fine schools for any violation pertaining to sexual violence. Donate here: http://www.survjustice.org
  • NOW Legal Defense works to enforce girls’ equal access to education. Their work in this area focuses on how sexual harassment in schools operates as a barrier to equal education. Find out more: https://www.legalmomentum.org
  • Take action on issues impacting women and girls by joining The American Association of University Women (AAUW) Action Network. As a Two-Minute Activist, you will receive urgent email notices when your advocacy is needed most. AAUWs provide all the tools you need to call or send messages to your members of Congress, write letters to the editor for your local newspapers, contact your state legislators about pressing issues, and more. https://www.aauw.org/what-we-do/public-policy/two-minute-activist/

This Brief was posted by USRRESIST NEWS Analyst Erin Mayer: Contact: erin@usresistnews.org

Photo by NeONBRAND

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