U.S. Secretary of Education Betsy DeVos says that Obama-era guidance on combating sexual assault needs a makeover. But she hasn’t been specific about what, exactly, she would like to see changed.
“We’ll get to work to figure out the best way to solve this problem,” DeVos said Thursday during her very first press conference at 400 Maryland Ave., the Education Department’s headquarters. “There has been a lack of clarity in this area. And I think it’s time for Congress to address this. This department is not going to make laws from this department. It’s Congress’ role to make laws, and so I think it’s high time for Congress to look at [Title IX which] was passed in 1972 and address these issues.”
DeVos’ comments came at the end of a daylong summit at the Education Department, during which the education secretary heard from survivors of sexual assault, students who have been say they had been falsely accused of it, and higher education administrators, as well as representatives of the National School Boards Association, which represents K-12 districts. (Check out the list of speakers here.)
Colleges and universities have been wrestling this issue for years. But the issue impacts K-12 schools too, where more than 65 complaints were filed with the department in fiscal year 2015, according to the Washington Post.
“This was an emotionally draining day,” said DeVos. “I saw a lot of pain today but I also saw a lot of determination and courage. ... No student should be the victim of sexual assault ... No student should feel the scales are tipped against him or her. We need to get this right. We need to protect all students. ... It’s obvious the toll this places on everyone involved.”
The federal role in pushing colleges to investigate allegations of sexual assault was a huge issue during the Obama administration. Back in 2011, then-U.S. Secretary of Education Arne Duncan and his team issued guidance calling on colleges to use a different—and arguably, lower—legal standard for determining whether a sexual assault had occurred. Instead of the typical “beyond a reasonable doubt” standard used in criminal cases, the department advocated for what’s called a “preponderance of the evidence standard"—which basically translates to “more likely than not.” (Great background from Lauren Camera at U.S. News here.)
Advocates for victims of sexual assault hailed the change. But critics said that the new policy didn’t give enough consideration to those accused of committing sexual assault. It sounds like the department thinks this needs to be addressed—it’s just still figuring out the how.
Complicating matters: Ahead of the meeting, Candice Jackson, the acting assistant secretary for civil rights at the Education Department, told the New York Times that 90 percent of the sexual assault cases reported “fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’” Jackson later apologized for her “flippant” remark.
And of course, if Congress takes DeVos up on her suggestion and decides to reopen or clarify the federal law, another issue could potentially be on the table too: transgender rights.
Back in 2016, the Obama administration put forward guidance making it clear that transgender kids should be able to use the bathroom that matches their gender identity. The Trump administration rescinded that guidance shortly after taking office.
And an office for civil rights memo leaked to the Los Angeles Times directed department employees to focus primarily on bullying—not bathrooms—when addressing potential school district violations against transgender kids.
Asking Congress to revisit Title IX isn’t the way to address the issues facing transgender students, said Chris Tuttle, a spokesman for GLSEN, which advocates for LGBTQ students.
“They’re trying to throw it over to Congress and make it an issue that they have to deal with,” Tuttle said. But in his mind, “DeVos is charged to head the department that is responsible for ensuring the civil rights of young Americans are enforced.”
Follow us on Twitter at @PoliticsK12.