Will rules on investigating college sexual assault be dialed back?

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JUDY WOODRUFF: Next tonight, we turn to one of
the most controversial issues in higher education today, sexual
assault on college campuses.


The U.S. secretary of education, Betsy DeVos, is considering
dialing down federal guidance for how colleges and universities
should handle sexual misconduct investigations. It’s a move
that’s dividing school administrators, survivors and even the
accused.


That’s the topic for our weekly education segment, Making the
Grade.


Our William Brangham has more.


WILLIAM BRANGHAM: We’re talking about the
interpretation of Title IX. That’s the 1972 law meant to prohibit
sexual discrimination at federally funded schools and colleges.


In 2011, the Obama administration issued new requirements for how
those schools should handle investigations into sexual assaults
on their campuses.


Survivors and advocates had long argued that administrators
weren’t doing enough to deal with an epidemic of these assaults.
A 2016 Justice Department survey showed that one in five women
said they’d been sexually assaulted in college. The Obama
administration wanted to address that.


Here’s how then Education Secretary Arne Duncan described their
effort:


ARNE DUNCAN, Former U.S. Education Secretary:
Today, for the first time ever, an administration is releasing
guidance under Title IX of the Education Amendment of 1972
explaining how schools and colleges should deal with sexual
violence.


WILLIAM BRANGHAM: One of the more controversial
changes was that the department urged schools to now use a lower
standard of evidence in investigating these cases, using a —
quote — “preponderance of evidence” that a sexual attack had
occurred.


Schools began changing their policies. Those that didn’t were
threatened with the loss of federal funding. Victim advocates,
like Fatima Goss Graves of the National Women’s Law Center,
celebrated the new guidance.


FATIMA GOSS GRAVES, National Women’s Law Center:
Forty-five years after Title IX first banned sex discrimination
in education, you finally have colleges and universities paying
more attention, trying to take the steps that are necessary to
have campuses that are safer, and to ensure that sexual assault
isn’t an issue that’s just swept under the rug.


WILLIAM BRANGHAM: But others, like Cynthia
Garrett of Families Advocating Campus Equality, argue that the
increased pressure on schools tipped the scales of justice
against the accused.


CYNTHIA GARRETT, Families Advocating Campus
Equality: I think that the guidance that Obama — the Obama
administration issued went too far the other way. And, as a
result, there are colleges terrified to rule in favor of accused
students or find them not responsible.


WILLIAM BRANGHAM: Taking a fresh look at the
rules, last month, new Education Secretary Betsy DeVos convened
listening sessions with sexual assault survivors, school
administrators, and even students who’d been accused of sexual
violence.


BETSY DEVOS, U.S. Education Secretary: No
student should feel the scales are tipped against him or her. We
need to get this right.


WILLIAM BRANGHAM: Critics rallied outside the
department’s headquarters, demanding DeVos not rescind the Title
IX guidance from the Obama years.


Adding to the controversy, Candice Jackson, DeVos’ acting head of
the Office for Civil Rights, said that nearly all sexual assault
allegations fall into the category of — quote — “We were both
drunk, we broke up, and six months later I found myself under a
Title IX investigation.”


Jackson later apologized for her comments.


Survivors and their advocates fear this sentiment signals that
the department will rescind the 2011 guidance or simply not
enforce it.


Michelle Anderson is the president of Brooklyn College.


MICHELLE ANDERSON, President, Brooklyn College:
If Betsy DeVos rescinds the 2011 guidance, campuses are left
adrift about how to respond to the mandates of Title IX. And the
campuses need that guidance in order to perform effectively, in
order to respond to the needs of students.


WILLIAM BRANGHAM: There’s no sign yet as to what
the Department of Education plans to do.


For more on all this, we turn to Anya Kamenetz. She’s the lead
education writer for NPR.


Welcome back to the NewsHour.


ANYA KAMENETZ, NPR: Thanks, William.


WILLIAM BRANGHAM: So, before we get into the
nitty-gritty of this, the cases that we’re talking about here,
the assault cases, are an allegation where one student has made
against another student, and it’s the schools, not law
enforcement, that are adjudicating this.


ANYA KAMENETZ: Yes.


And a lot of people feel like that’s really the heart of the
issue, because the Obama administration’s guidance was attempting
to get schools, colleges, to take a stronger stance in
adjudicating these claims.


And a lot of people might say, well, shouldn’t that be law
enforcement’s problem? But the argument was that, under Title IX,
this is a civil rights matter, because it has to do with female
students and other victims’ ability to have equal access to
educational opportunity.


Schools might say, well, we don’t have the infrastructure to
necessarily investigate these claims or the fact-finding. And
then some critics of the policy as well from outside say, yes,
there’s not necessarily the same standards of evidence for an
investigation when a school looks at a claim vs. law enforcement.


WILLIAM BRANGHAM: And the criticism of what the
Obama administration did was that by tying these investigations
to federal money, and by lowering the evidentiary standard, that
you’re basically making a very strong incentive for schools to
convict someone who is accused.


ANYA KAMENETZ: Right.


So, with this statement, the Obama administration sort of created
a national standard of preponderance of the evidence. Some
colleges have used that standard before, but the bottom line is,
they’re forcing a compliance mentality on the colleges by saying,
we think that, in order to be good colleges with regard to sexual
violence, that you have to follow these rules, one, two, three.


Some victims’ advocates were very much in favor of that. And
others, including some legal scholars, said this is overreach by
the federal government. That’s certainly the position that DeVos
and the Trump administration seem to be taking.


WILLIAM BRANGHAM: Currently, are schools and
universities happy with this circumstance?


ANYA KAMENETZ: I think that there’s a variety of
opinions.


Unfortunately, sexual violence is endemic on campuses. And so the
feeling among colleges is, nobody wants to be singled out. And so
some might say that having a single standard of investigation and
what the federal government considers to be a strong standard,
then colleges can point to that and say, we’re in compliance,
we’re doing the right thing.


Other colleges might say — resent having this thrust upon them.
And it’s hard to say where colleges might fall on that.


WILLIAM BRANGHAM: So, we don’t know exactly what
Betsy DeVos and the current Education Department is going to do,
but kids are going to start going to college pretty soon now.
What do you think that this whole conversation is going to mean
for them going forward?


ANYA KAMENETZ: I think the messaging around this
is really important, because, ultimately, sexual violence, it
claims victims. It’s a common situation, unfortunately, common on
campuses, but it’s also a school climate issue.


It has to do with how a young woman and even a young man feels
about what party they’re going to go to. If they’re going to be
doing a certain activity after hours, can they walk alone? And I
think that those safety issues are going to be on students’ minds
as they go back to campus, and certainly on parents’ minds as
well.


WILLIAM BRANGHAM: All right, Anya Kamenetz of
NPR, thank you so much.


ANYA KAMENETZ: Thank you.


The post Will rules on investigating college sexual assault be
dialed back? appeared first on PBS NewsHour.