Every September, our Sexual Assault Crisis Response Program team braces for a surge in calls to the hospital for folks requesting medical forensic services after an assault. Why? DC is home to a high concentration of colleges and universities. College students, in fact, comprise one in every 8 DC residents. With this autumn influx of returning students, the back-to-school season brings with it a bump in demand that is consistent enough to be predictable. Unfortunately, we are in the midst of a crisis of sexual assault on college campuses, and this is one of its symptoms. I have to think that this was a factor in the decision to designate September as Campus Safety Awareness Month--surely campus staff, students, and groups see this surge, too. Because predictable doesn’t have to mean inevitable, we are striving to find effective responses to campus violence. We work with schools and with student groups to equip survivors with information on where to go for help, to enable easy access to our services, and to provide free legal services. For us, Campus Safety Awareness Month means spending every September reaching out to a new generation of students to support their safety.
But in an uncanny and frustrating move this year, September is also the month that the current Department of Education (DOE) chose to reverse the previous administration’s efforts to combat the sexual assault epidemic on campuses. On September 7, Secretary of Education Betsy DeVos gave remarks at George Mason University claiming that the previous administration’s guidance on using Title IX to protect and provide recourse for students who experience sexual assault had done more harm than good. According to her, this directive to schools gave rise to a supposed pattern of accused students being denied due process. Then, this past Friday, the DOE formally rescinded the previous administration’s guidance, issuing an interim Q&A as a replacement.
The interim guidance differs substantially from the guidance that it replaces. Critically, it allows schools to use a higher standard of proof when adjudicating accusations of sexual assault than that which was required previously. In other words, the new guidance opens the door for schools to make it harder to prove cases that are already by nature difficult to prove. Another disturbing change is that the interim guidance no longer requires institutions to allow a survivor to appeal a decision. Schools can limit appeals to the accused only, under the theory that only the accused student stands to lose anything from the school’s decision. We are sharply aware in this work, though, just how much a survivor stands to lose when their assailant is not disciplined. For many survivors, dealing with the physical and emotional fallout of trauma while meeting the demands of higher education cannot be done in the presence of their attacker, and it is not uncommon for survivors to withdraw from school.
Title IX is a familiar phrase around NVRDC. A lot of our hospital clients are students, about 25% of the whole, and a great many of our clients who have experienced sexual assault on campus or by a fellow student seek relief through Title IX-related disciplinary processes. At this moment, Title IX cases comprise approximately 20% of all of NVRDC’s active civil cases. Sometimes, student survivors simply want to continue their studies with reasonable accommodations for their physical and emotional safety. Or, perhaps, they hope for the assailant to face consequences even if there is little chance of criminal penalties ever being imposed. Often, the campus system of adjudication is more accessible, is more limited in scope, takes place in a shorter time frame, and is just plain less traumatizing and intrusive than the criminal legal system. The previous application of Title IX to help deal with campus sexual assault has made a substantial difference in the lives of survivors.
To me, the crux of this issue, the actual game-changer embedded in the previous approach to Title IX, is the element of institutional accountability. Institutions have a deeply ingrained incentive to make their problems disappear quickly and quietly. Regrettably, this works all too well in concert with a culture that prefers to deny the existence, seriousness, or pervasiveness of sexual assault. Assailants are able to operate because it is so much easier to ignore them and minimize them and wish them away than it is to take action and make changes. Under the previous interpretation of Title IX, there were consequences for institutions that tried to keep avoiding the issue.
The new administration’s approach changes that. Betsy DeVos’s September 7 commentary suggested that the previous guidance had unfairly stacked the deck in favor of accusers while stripping rights from the accused, and sets this change up as a corrective to protect the rights of all students. But this fundamentally misconstrues the purpose of the previous use of Title IX. Rather than putting a finger on the scale in favor of accusers, it shifted the balance of incentives for schools away from inaction and towards accountability. It takes a lot of pressure to tilt that balance, and that is what it looks like we might stand to lose at the federal level under this DOE Administration.
So what now? One important note is that the Clery Act, a federal law that sets policy for campuses in responding to crime, is still in effect, and still contains protections for campus survivors of sexual assault. Many of the requirements for campus disciplinary proceedings come from Clery, not Title IX, and are unchanged. The other thing to remember is that while we may be losing support at the federal level, the DOE is not the only player. As professionals, students, activists and citizens affected by this issue, we too can press institutions to enact or maintain policies that make justice for survivors accessible. The new guidance allows but does not require that schools apply a higher standard of evidence or prevent survivors from appealing decisions. We can press institutions to continue to use the appropriate standard of evidence and to recognize how much survivors have at stake in their decisions. We can draft local and state government into this cause to apply the pressure and oversight that we can no longer count on from the federal government. Let the lessons of this September be that campus safety demands institutional action, and that action flows from accountability. We can’t create safe campuses without the investment and participation of educational institutions--which is why we must leverage our individual and community power to keep educational institutions in this fight.