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Education Secretary Betsy DeVos recently expressed her disapproval of the way universities across the country are dealing with sexual assault. But her call for reform focus on the rights of accused, forgetting that victims and survivors have historically rarely been granted dignity or even attention. The guidelines she seems intent on crafting could very likely re-erect some of the barriers to reporting sexual violence that both liberals and conservatives fought to bring down.
by Cady Sartorius
Education Secretary Betsy DeVos recently expressed her disapproval of the way universities across the country are dealing with sexual assault. Speaking at George Mason University on September 7, 2017, DeVos said that “too many [universities] fall short when it comes to their responsibility under Title IX to protect students from sexual misconduct, acts of which are perpetrated on campuses across our nation.” But she is careful to ignore the untold number of cases—in the hundreds if not thousands—where Title IX procedures did lead to justice for victims of on-campus sexual misconduct.
Dozens of lawsuits in the last few years have challenged universities on their procedures for handling sexual assault cases in way that unfairly damage the victim and sometimes even the alleged perpetrator. The California Civil Rights Law Group is co-counsel in one of these cases, representing Joanna Ong in litigation against UC Berkeley on claims of sexual assault and sexual harassment by renowned philosopher and professor emeritus John Searle.
Sexual misconduct on campus is a serious issue that the Education Secretary should not ignore, but she is doing little more than keeping with the Trump administration’s trend of throwing the baby out with the bathwater. In the speech, DeVos briefly hinted at her view on what Title IX guidelines should look like, although she claimed that she will be seeking public feedback as well. For instance, DeVos feels that universities should not have to worry that reporting sexual conduct could result in the Office of Civil Rights getting involved in the investigation. But she simultaneously criticized universities for handing cases of sexual misconduct by appointing campus administrators to the case who are not trained in the law. She also thinks that the accused often face unjust consequences like expulsion for conduct less egregious than full-blown sexual assault.
Though DeVos gets some things right—for example, that “[w]e can do a better job of helping institutions get it right,”—changing the current Title IX guidance is not the right solution. DeVos cited no data, no statistics, and no authorities stating that the policies themselves are the source of the problem. DeVos’s call for change centered around the poor administration of sexual misconduct investigations done by universities. Granted, no policy is perfect, but DeVos should be soliciting suggestions on how to help institutions fairly investigate sexual misconduct by working within the protections outlined by the previous administration before overhauling a system that has worked for hundreds of victims.
The guidelines she seems intent on crafting could very likely re-erect some of the barriers to reporting sexual violence that both liberals and conservatives fought to bring down. If DeVos has it her way, that wall will be made even taller by narrowing the definition of what counts as sexual misconduct. DeVos’s baseless soundbite on the issue is tragic: “. . . if everything is harassment, then nothing is.” She should tell that to the victims whose stories she shared last Thursday.
DeVos’s speech also placed what many feel is undue weight on due process concerns for alleged perpetrators. For example, she expressed deep concern that broad definitions of sexual harassment lead to the investigation and punishment of too many young men and university faculty who were “simply  speaking their minds.” This is a dangerous misinterpretation of events, and one that indicates a fundamental misunderstanding of the power imbalances at play in cases of sexual misconduct. DeVos is forgetting that victims and survivors have historically rarely been granted dignity or even attention.
If due process is DeVos’s goal, then Title IX is not the enemy—these backwards attitudes that attempt to divert even more attention away from victims and dissuade them from reporting are the biggest barriers to fair adjudication of sexual assault.
If you think you experienced sexual harassment, reach out to one of our San Francisco Bay Area attorneys with expertise in sexual harassment issues. No two situations are alike; accordingly, this blog post should not be construed as legal advice.