Saying the system has failed both victims and those accused of sexual assault, Education Secretary Betsy DeVos on Thursday announced a rollback of government guidelines that have spurred federal investigations of hundreds of colleges, including at least 26 in Massachusetts.
DeVos faulted the Obama administration for issuing a 2011 directive that required universities to thoroughly investigate assault claims, saying it resulted in college “kangaroo courts” denying due process to those accused of sexual misconduct.
“Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students,” DeVos said in a speech at a university outside of Washington, D.C.
Though she did not provide details on a replacement measure, a spokeswoman later promised an “open and transparent process to replace the current guidance with a workable system that is fair for all students.”
Some Massachusetts universities said they had no intention of reversing course, however. Bentley University president Gloria Larson said in a statement that the announcement would have “no impact” on the school’s pledge to protect students against sexual assault. “Our commitment to these protections for all of our students, faculty, and staff remains as strong today as ever.”
A spokeswoman for Harvard University said the school has “worked persistently to more effectively prevent sexual assault and other forms of sexual harassment, and to respond fairly and thoroughly to allegations when they arise.”
The Obama-era rule — prompted by a concern that colleges were still not taking campus rape and assault seriously — was issued under Title IX, the gender discrimination law passed in 1972 and best known for opening up athletic opportunities for girls. The 2011 directive aimed to ensure students who were assaulted or harassed on campus could complete their educations without pressure, and it laid out guidelines for how universities should protect survivors. Colleges that failed to comply risked losing federal funding.
“When we were in school, our universities routinely failed survivors, even going so far as to suggest that survivors should drop out of school until their perpetrators graduated,” said Dana Bolger, a cofounder of “Know Your IX,” a survivor-led organization that aims to empower students to end sexual violence. The letter “told us for the first time that we did have rights.”
But in recent years, many have complained that the process tipped too far in the other direction, presuming guilt rather than innocence and failing to protect the rights of the accused. Unlike a criminal case, which would have to be proven beyond a reasonable doubt, a case adjudicated on campus is decided based on a “preponderence of evidence.”
A group called the Foundation for Individual Rights in Education this week released a report detailing a lack of procedural protections for those accused of assault and finding that many top universities do not even guarantee students will be presumed innocent until proven guilty. In a statement, foundation executive director Robert Shibley called DeVos’s speech a “reason for great optimism that the important issue of campus sexual assault will finally get the fair and open consideration it deserves.”
The Education Department’s Office for Civil Rights currently has 360 cases related to Title IX campus sexual violence under investigation at 257 colleges.
In her speech, which aired live on Facebook, DeVos denounced sexual misconduct as “atrocious” and gave voice to women’s concerns about sexual assault.
“One rape is one too many. One assault is one too many. One aggressive act of harassment is one too many,” DeVos said. “One person denied due process is one too many. This conversation may be uncomfortable, but we must have it. It is our moral obligation to get this right.”
Her attention was keenly trained on reports of false accusations and the impact on young men whose college careers have been derailed by entanglement in a bureaucratic system in which they were unable to defend themselves. Universities and government policy must better balance the rights of the accused with the rights of victims, she said.
The speech infuriated activists for women’s rights.
Neena Chaudhry, director of education for the National Women’s Law Center, called it an “attack on survivors of sexual assault.”
While acknowledging that some colleges have made mistakes, which resulted in unfair processes, she said, “When you have a rule and people aren’t following it, the answer is not to get rid of the rule. The answer is to help them follow the rule.” Changing the guidance, she said, “is only going to make it harder for survivors to come forward and to get the justice that they need.”
Boston Area Rape Crisis Center executive director Gina Scaramella said she was deeply disappointed with DeVos’s decision to replace the 2011 directive and that sexual violence on college campuses remains a pervasive issue.
“Today’s announcement sends a confusing message to colleges and universities charged with complying with the requirements of Title IX,” Scaramella said in a statement.
Attorney General Maura Healey, one of 20 state attorneys general who wrote to DeVos this summer urging her not to abandon the rule, said the secretary is moving the department in the wrong direction.
“Her comments showed a basic lack of understanding of the very real and pervasive problem of sexual assault on our college campuses,” Healey said in a statement Thursday.
For DeVos and others seeking to rewrite the rules, the process may well be thorny.
Those involved in the process say it’s incredibly difficult to sort out the particulars of an unseen sexual encounter between two students — who often have been drinking, and sometimes do not want to cooperate with an investigation. Universities — bound to protect victims of sexual assault — must take immediate action to insulate victims from those accused of attacking them. That affects the lives of both students, long before guilt is established.
“Which makes sense if there’s been a heinous crime that’s happened. You want to act quickly to let her or him know that we’ve got you on this, you’re going to be safe,” said Lee Burdette Williams, a former dean of students at Wheaton College. “But there’s really no way to do that without really compromising the other student’s opportunity to continue.”
Williams grew so frustrated with the process — fielding intense scrutiny from the public, the government, and pundits, rather than the students she was tasked with protecting — that she dubbed herself the “Dean of Sexual Assault” in a 2015 opinion piece.
On Thursday, she said she was pleasantly surprised that DeVos wasn’t oversimplifying the issue. “I know people are going to say it’s all blaming the Obama administration and that’s what the Trump administration does,” Williams said. “If we just keep saying that, we’ll miss the point. Maybe this is an opportunity for this to really change.”