Feds' approach to sexual misconduct in schools leaves victims more vulnerable

Karla Miller has been a counselor to rape survivors, run a rape-crisis center in Iowa City,  administered polygraph tests to accused rapists and conducted risk assessments on the propensity to re-offend. She serves as an expert witness on sexual assaults. Since she began in this field, she has witnessed a sea change in the way education officials understand and respond to sexual assaults, thanks in large part to former President Obama's elevation of college sex-abuses as a civil rights issue under Title IX.

Now Miller and other Iowans who work on sexual misconduct prevention and response are horrified to see President Trump’s Department of Education fixing to dismantle  those Obama-era policies. The changes afoot would both redefine sexual harassment and make universities and colleges less accountable for how they handle reports of it. Miller says such proposals “are based on ignorance of victims, perpetrators, and the dynamic of sexual abuse." 

One in five women and about 6 percent of men are sexually assaulted or are victims of attempted assaults while in college, according to a report for the National Institute of Justice. One in four girls is sexually abused before age 18. Obama's 2011 directive came in the wake of some high-profile cases of universities dropping the ball on assault allegations against faculty or students. It required investigations to be more thorough and gave the policies teeth by threatening to cut federal funds to institutions that didn't comply.

But facing pushback on behalf of  some educational institutions and accused men, Trump's Education Secretary Betsy DeVos last fall rescinded the Obama administration directive outlining schools' responsibilities. She said the stories of people claiming to be wrongly accused are also important and "their stories are not often told.” The DOE contends that, “The lack of clear regulatory standards has contributed to processes that have not been fair to all parties involved.”

Accordingly, the Trump administration would give more rights to accused students and reduce colleges’ and universities’ liability for sex abuses. 

Accused people should and do have due-process rights in court. But as the advocates point out, educational institutions' obligation to ensure safety for students doesn't interfere with those rights or deny anyone's due process. Obama's policy replaced the "beyond a reasonable doubt" standard used in legal convictions with a “preponderance of  evidence standard” to determine if an accused student had committed misconduct warranting suspension or expulsion. But the new DOE regulations would allow institutions to choose one standard or the other.

They’d likely choose the tougher standard so few cases would meet the threshold, argues Miller. Linda Stewart Kroon, director of the Women's Resource and Action Center at the University of Iowa, and Kerri True-Funk, associate director of the Iowa Coalition Against Sexual Assault, note that’s a higher standard than is required in civil court proceedings. Kroon said it would likely make it even rarer for perpetrators to be held accountable and could “further decrease the number of survivors willing to come forward and report.”

Any student misconduct typically brings disciplinary action, as True-Funk points out. Why single this kind out for special protections? Under the new sexual misconduct rules, schools wouldn't be responsible for incidents involving students or faculty off campus, such as in frat houses or off-campus housing. “When it comes to a university student with weapons offenses, they don’t care if it’s on or off campus,” she said. “Especially with institutions closely aligned with campus, like the Greek system, which have offices staffed by college personnel.”

In place of punitive action, schools would be encouraged to offer victims more support, including mediation sessions where they and their accused offenders could question each other — something the Obama directive had rejected as traumatic or intimidating. True-Funk notes such an approach would never be used on a student accused of plagiarism, for example. 

“We support creative ways to address these issues that are meaningful for victims,” she said — but only if victims choose them.  

"People continue to tap into myths and misconceptions about these things," Miller said.  Remember what Candice Jackson, the acting head of the Education Department's office for civil rights, told the New York Times in July 2017?

More:Basu: DeVos, education officials shouldn't play politics with campus rape

She said 90 percent of campus sexual-assault investigations are instigated by vindictive former girlfriends after getting drunk, having consensual sex and later breaking up with the alleged culprits. She also had a name for women accusing Trump of assault and harassment: "Fake victims." 

Under the new DOE plan, schools would be in violation only if they had been “deliberately indifferent,” about addressing allegations of misconduct “when they had actual knowledge” of what was happening, rather than should have reasonably known. And they would be responsible only for following up on "formal" complaints made to officials with the authority to order corrective measures. That leaves a lot of room for error. 

The Obama administration defined sexual harassment as “unwelcome conduct of a sexual nature.” The new regulations redefine it as “so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”

That would make enforcement more arbitrary, especially since some middle- and high-school officials don't understand that Title IX applies to more than sports, worries True-Funk. Many are not properly training or designating officials to handle such cases, she said. 

 “We already see appallingly small numbers of perpetrators actually held accountable in meaningful ways,” Kroon said. “I don’t see how the reported proposed new guidelines can reasonably be construed to be a step forward in making campuses safer.”

No, they're two steps back.

Rekha Basu is an opinion columnist for The Des Moines Register. Contact: rbasu@dmreg.com Follow her on Twitter @RekhaBasu and at Facebook.com/ColumnistRekha. Her book, "Finding Her Voice: A collection of Des Moines Register columns about women's struggles and triumphs in the Midwest," is available at ShopDMRegister.com/FindingHerVoice