Law & Public Policy Blog

The “Misguidance” of DeVos’s Department of Education About Campus Sexual Assault

Cary Zhang, Law & Public Policy Scholar, JD Anticipated May 2021

The current Secretary of Education, Betsy DeVos, once stated in a 60 Minutes interview that she did not know which was greater, the number of false accusations of campus sexual assaults or the actual number of campus sexual assaults.

Well, I certainly know. I know through common sense that the majority of women who report sexual assault are not making it up, misunderstanding, or overreacting. I know through emotional perception that many women actually struggle to report their assault because they feel that it would be hopeless and shameful. I know through psychological research how deeply sexual assault affects the survivor.

I also know all this through personal experience. When I was in college, I was sexually assaulted by another student. I reached out to campus police for help, but I did not receive it. Several hours after I reached out, I was sexually assaulted by the same student again. I did not report that time.

I felt panicked—if it happened to me, it was happening to others. And in fact, it was: 1 in 5 female college students are sexually assaulted at least once while they are in college (sexual assault being unconsented sexual contact or penetration). However, only 1 in 8 report that to any official, and only 1 in 25 report incidents of sexual battery (sexual battery being unconsented touching of an intimate body part).

I felt hopeful that maybe things were changing several years ago when I saw headlines of celebrities sharing their survivor stories and encouraging others to do the same. I logged onto my social media at that time and saw #MeToo everywhere. People, myself included, were feeling more empowered to talk about sexual assault. The #MeToo movement and increased research spurred then-President Obama to make campus sexual assault a priority. Vice President Biden started the “It’s On Us” campaign, aimed at stopping sexual assault on college campuses. He traveled to campuses across the nation delivering speeches about dismantling a type of campus culture that trivialized sexual assault. That mentality of holding not only students, but also colleges and universities responsible for their environments was the policy of Obama’s administration.

Nowhere was that policy more directly impactful than in the Obama-era Title IX guidance. Title IX is the federal law passed in 1972 that holds that no one shall be discriminated against on the basis of sex in any educational program receiving federal funding. This covers almost every single primary, secondary, and undergraduate institution in the country.

In 1999, the Supreme Court held that sexual harassment or assault constitutes discrimination under Title IX when it is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities provided by the school. When schools are deemed to have been deliberately indifferent to sexual harassment of which they have actual knowledge, then they have violated Title IX.

Title IX is the law, but its real impact comes from how it is interpreted and implemented. And the person (or entity) that interprets and implements Title IX is the Secretary of Education (or the Department of Education). The Department issues “Dear Colleague Letters,” fact sheets, and “know your rights” documents explaining specific aspects of Title IX to schools.

For instance, in 2011, the Department issued a “Dear Colleague” letter that said schools needed to respond to claims of sexual assault even when they occurred off-campus, based on the theory that what happens outside of the education program may be a reflection of a toxic campus culture. The document also explained requirements for disciplinary proceedings. Failure to comply with the guidelines allowed the federal government to withdraw federal funding. These guidelines established that the administration’s focus on creating an environment where survivors could report their assaults, and where the federal government would hold perpetrators and universities accountable. It had been the trend of previous administrations to move toward these focuses as well.

But that all changed when Donald Trump took office and Betsy DeVos was named the Secretary of Education. Campus sexual assault is still a priority for the Department of Education—but the priority seems more about protecting people (mostly young men) from false accusations and less about ending campus sexual assault culture and empowering survivors to report. DeVos’s office rescinded Obama-era guidance and proposed its own 144 pages of regulations. These regulations narrow the definition of sexual assault, they do not require universities to respond to sexual assaults on their students that happen off campus, and university employees do not need to be trained on signs of possible sexual harassment or how to report sexual harassment. The regulations also allow university disciplinary hearings to treat victims more confrontationally.

The combined effect of DeVos’s proposed rules is that it will be harder for survivors to get institutional closure and easier for perpetrators to get away with their actions. Especially because the new regulations do not require schools to take proactive measures to prevent sexual violence, the prevalence of sexual assault on college campuses will not diminish. And sexual assault will continue to go underreported, if not even more underreported. It will continue to go unpunished, and colleges and universities will be less responsible for the sexual violence, assault, and harassment effecting their students.

When I think about these regulations in the context of DeVos’s public comments on 60 Minutes and in the context of the Kavanaugh hearings, I hear a deafening message from the Trump administration that survivors make false accusations—that survivors should not be believed. This message perpetuates a campus culture of sexual violence where perpetrators begin to believe that their actions were not wrong, and survivors begin to believe the same—that their perpetrator’s actions were not wrong, that it was somehow their own fault, and that sexual assault is just something happens in college. This message is misguided. It hurts and insults survivors. It is a message we must reject.