In DeVos’ confirmation hearing before the Senate Health, Education, Labor and Pensions Committee, Sen. Bob Casey asked her if she would uphold current federal guidance on Title IX and sexual assault cases on campuses.
DeVos said it was premature to make that commitment.
Federal guidelines now
Samantha Harris, vice president of policy research for the Foundation for Individual Rights in Education, said the Office for Civil Rights of the Department of Education issued a Dear Colleague Letter in April 2011 explaining how Title IX relates to sexual harassment and sexual violence.
Anna Voremberg, managing director for End Rape On Campus, said current federal guidelines provide a definition for sexual assault that provides broader protection for victims.
Harris said the Dear Colleague Letter started the Preponderance of the Evidence standard that requires colleges to prosecute a sexual harassment case if the assault is more likely than not to have occurred.
“The problem is it’s a low evidentiary standard and a lot of university judicial systems lack a lot of the procedural protections that courts have,” she said.
Jenna Robinson, president of the Martin Center for Academic Renewal, said the standard is dangerous to use because if 50.1 percent of the evidence suggests the accused person is guilty, they can be found guilty.
“Since it is a criminal charge, I think students accused of sexual assault should be judged on the same standards as a criminal case, so we should be looking to see if this person is guilty beyond a shadow of a doubt,” she said.
Robinson said she would not be surprised if DeVos repeals the April 2011 Dear Colleague Letter.
Voremberg said an increase in reports of sexual harassment over the last two years likely indicates the letter’s positive impact.
“But there’s a legitimate fear by survivors and victims that if they report, one, nothing will happen, and because of the GOP’s stance that Title IX should not be used the way that it’s used, which is not backed up by years of case law, (survivors and victims) won’t be able to hold their schools accountable,” Voremberg said.
The next secretary of education could choose to delegate responsibility to law enforcement, Robinson said.
Voremberg said the criminal justice system is not adequately prepared to handle campus sexual assault cases. She cited research that shows a significant number of students would not have reported their sexual assault if they had to report to the police.
“The other issue is that alcohol and drugs are often involved, and for example, here in North Carolina, rapes that occur when the victim is incapacitated are almost never prosecuted,” she said.
She said the courts ruled several years ago if an individual is responsible for their incapacitation, they are responsible for whatever happens to them.
“So, say you voluntarily take 10 shots, if you are raped during that period of time, you are responsible for that assault,” she said. “And so you think about it, most people are drunk, or a lot of them are — why would they go to the police? They know that nothing is going to happen, that their assailant won’t be tried, and going to the police is a pretty traumatizing experience.”
Controversy and protest
DeVos’ family foundation’s donations to FIRE — which advocates for due process protections and the rights of the accused in campus judicial systems — are also controversial, Harris said.
“There are people who argue that somehow supporting procedural rights for the accused indicated some sort of lack of concern for the victims of sexual assault, which in my opinion is absolutely ridiculous,” Harris said.
The Senate Health, Education, Labor and Pensions Committee voted 12-11 Tuesday to send DeVos to the full Senate for final approval. The confirmation vote, which was delayed a week after its proposed scheduling on Jan. 24, was split down party lines.
Protests against DeVos took place Monday across the country — including in Raleigh.
Kathleen Nichols, a protestor, said, “DeVos has no experience and no respect for public education; therefore, she cannot represent us as secretary of education.”
Amanda Perez, who was also at the protest in Raleigh, said she believed DeVos is unfit to lead education policy in the U.S.
“As an educator for over 20 years, I am outraged about this nominee,” Perez said.
Voremberg said if DeVos is confirmed, there will be serious problems if she does not uphold Title IX requirements.
“The guidance was sort of a helpful ‘here’s actually what you need to be doing, by the way’ kind of thing,” she said. “I don’t know why anyone would want to see that go away.”