How DeVos' New Rules on Campus Sexual Assault Discriminate Against Survivors

These new rules—which grant greater protections to accused students—are potentially devastating to survivors of sexual violence, activists say. In a letter, the Department of Education's Office of Civil Rights outlined several changes to the existing policy: Schools are now permitted to put a higher burden of proof on survivors, to allow accused rapists to cross-examine their alleged victims, and to eliminate survivors' right to appeal. The guidance also eliminates a survivor's right to a prompt Title IX investigation, lifting the requirement that schools must complete sexual misconduct investigations within 60 days.

"This guidance systemically tips investigations against survivors," Sejal Singh, a policy coordinator with the advocacy group Know Your IX, told Broadly.

DeVos has said that the former Title IX guidance unfairly denied rights to students who are accused of sexual assault, a claim activists strongly deny. "The Obama-era guidelines reflect bipartisan consensus that campus investigations into sexual assault had to be prompt, equitable, and fair to both sides," Singh said. "There's a conservative media narrative that the Obama guidelines required campuses to be procedurally unfair to accused students, but nothing could be further from the truth."

In a speech earlier this month, DeVos said that rescinding the current Title IX guidance is necessary because it's a "failed" system, one that has "pushed schools to overreach." She cited several cases in which accused students were denied fair process—like one student who wasn't even notified that he'd been accused, and others who were denied the right to appeal. But Singh says that is a failure of schools, not the policy itself. In these cases, she argues, administrators weren't actually upholding the guidance—rather, they were failing to comply with it.

"Many of the examples that DeVos cited in her speech are explicitly prohibited by [the Obama-era guidance]," she said. The solution to this, she adds, is simply "enforcing the law and requiring schools to maintain fair investigations to both parties." Instead, however, the Department of Education "has issued new guidance that encourages schools to turn a blind eye to sexual assault in schools."

Activist groups worry that survivors of sexual assault will no longer feel comfortable reporting sexual violence and seeking help. Particularly troubling is the fact that the new guidance allows schools to suggest a process called "mediation" instead of a full investigation. This means that survivors would potentially be forced to be in contact with their rapist in order to "work it out."

"I think the last thing survivors want when they come forward to seek justice is to be told that the school isn't going to do anything and they should just deal with it on the same level as an interpersonal dispute," Singh said.

While these changes will, terrifyingly, give schools the latitude to discriminate against survivors of sexual assault, Singh underscores that "students still have the right to report sexual assault and get justice from their campus." She adds, "It's important for schools to know that they still have the legal—and moral—obligation to take sexual assault seriously."