Yesterday Secretary of Education Betsy DeVos announced that the Department of Education will commence a “notice and comment” process to formulate guidance regarding schools’ responsibilities in handling sexual harassment and sexual violence and made clear her intention to replace the Obama Administration-era 2011 guidance which has provided protection to sexual assault survivors and clarity for schools to respond to incidents of sexual harassment and violence.
Secretary DeVos’ statements of concern for sexual assault survivors only thinly masked the actions behind her words. Secretary DeVos repeatedly spoke of her intention to provide guidance to schools to respond to sexual harassment and violence in a manner equitable to both the accuser and the accused. Yet her emphasis was consistently on providing robust protections for accused students—well beyond what is appropriate for an administrative disciplinary proceeding—to the detriment of student victims. It is true that schools’ interpretations of Title IX and the previous administration’s attempts at providing clarity on their responsibilities have led schools to implement quasi-judicial procedures that mimic the criminal justice system and benefit no one. But Secretary DeVos’ emphatic repetition of the perceived due process rights of accused students demonstrates her deep misunderstanding of the law. Title IX is a civil rights law, not a criminal law. Schools owe an equal duty to ALL students—whether accuser or accused.
Secretary DeVos’ statements and actions do not change the fact that Title IX is still the law of the land, as it has been for 45 years. Sexual harassment and sexual assault committed on campuses without appropriate response is still sex discrimination under our law. We are confident that through the notice and comment process, Secretary DeVos will come to realize the overwhelming support for the policies put forth in the 2011 guidance. If schools are failing to get it right then our answer should be greater Title IX enforcement, not softening of legal protections. Legal Momentum will continue to voice our support of sexual assault survivors and the right of every student to equal access to a safe education.
If you are a victim or survivor of sexual harassment/assault on your K-12 or college campus and want to discuss your rights, call Legal Momentum at 212-925-6635 ext. 650 or see our Title IX resources.