The rules, issued Friday, would make schools less safe by narrowing the definition for what counts as sexual misconduct, creating barriers for students to report these incidents and limiting the responsibility of schools to respond.
DeVos speaks of of her concern for sexual assault survivors, but her words ring hollow. These proposed rules illustrate that her driving concern is not that less than 10% of college students report the sexual assault and harassment they experience. It's not that school administrators are not getting those reports to know what's happening on campus and prevent further violence. It's not that students are routinely subject to sexual assault and harassment by fellow students online or at bars or fraternities. And it's not the extraordinary and lifelong pain and trauma that children experience when they are raped or harassed.
None of that is what prompted DeVos to take a full-scale detour from decades of well-reasoned law and practice and upend long-established definitions of sexual harassment. Instead, she relies on myths that she is intent on perpetuating in federal policy.
Here are three of her favorites.
1. "Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes," DeVos said in a 2017 speech as she decried a failed system that did not serve survivors, accused students or educational institutions.
Without mention of a single such case, DeVos decided that it's freedom of speech and expression that needs protecting over the thousands of students who have been sexually harassed and assaulted -- and despite the fact that sexual violence is not a protected form of expression.
By narrowing the long-standing definition of sexual harassment -- "unwelcome conduct of a sexual nature" -- to include only behavior that is "severe, pervasive, and objectively offensive," she suggests that a 14-year-old student who feels uncomfortable due to suggestive comments by her teacher is not being harassed. These changes discourage young people who have endured sexual harassment from coming forward -- all to protect a mythical someone, somewhere, who didn't feel comfortable making a provocative comment in class.
2. What happens off campus stays off campus: DeVos' proposed rules suggest the only acts of violence that impact whether students feel safe and comfortable at school happen in classrooms, hallways or school events. Under her rules, schools may not be responsible for responding to incidents of assault or harassment that take place online or at bars, fraternities, off-campus apartments or away games.
So a school could dismiss a request for a change in class schedule from a seventh-grade student who is being sexually harassed online by her classmates. Or a college student who is sexually assaulted by a classmate at an off-campus apartment or campus bar might also have his complaint summarily dismissed by the school.
3. DeVos believes the greatest harm perpetrated in the campus sexual assault process is to the reputation and rights of the accused.
First, despite the attention paid to the Duke lacrosse case and the retracted Rolling Stone story about the University of Virginia, false accusations are rare. One out of 10 campus sexual assaults are reported, and generally only 2-10% of reports of sexual assault may be false, according to the National Sexual Violence Resource Center.
The number of false reports is miniscule in comparison to the more than 18% of all women who are sexually assaulted on campus and do not report it (and also the men, who are statistically more likely to face assault themselves than false allegations).
Regardless, DeVos has taken numerous steps to protect the accused and burden survivors. By narrowing the definition of sexual harassment and where it triggers school responsibility, she gives perpetrators latitude to engage in sexual misconduct, as long as it takes place off campus or is not both severe and pervasive.
She is pushing schools to adopt standards that make it harder for survivors to prove that they have been sexually assaulted, requiring schools to allow retraumatizing and unnecessary hurdles to be imposed on survivors (such as cross-examination at a live hearing) and telling schools that the accused must be believed throughout the grievance process -- unless the survivor demonstrates otherwise by clear and convincing evidence.
Secretary DeVos's mythical world is backwards. She has set up a rigged game of Chutes and Ladders, where those who are sexually assaulted constantly end up on a chute, and the accused constantly end up with a ladder.
Her proposed rules will soon be open for public notice and comment. It's up to us to dispel these myths, share our experiences and right the course to keep all students safe.
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