Future of Title IX uncertain for colleges as DeVos sets ‘interim’ guidelines

Oct. 3, 2017, 1:23 a.m.

For colleges across the country, including Stanford, the future of Title IX is uncertain as the Trump administration seeks to radically alter many of the guidelines that governed college campus sexual assault cases under former President Barack Obama.

On Sept. 22, Education Secretary Betsy DeVos officially revoked part of a policy set out by President Obama’s Education Department, giving colleges more discretion in how they handle allegations of sexual assault. DeVos’ department is currently gathering feedback on Title IX before formulating more permanent policies.

“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” DeVos said, explaining the decision. “Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

The Stanford administration says that its position on sexual assault policy is not changing in response to Secretary DeVos’s actions. In early September, when DeVos announced her intention to change the Department of Education’s policy but had not yet formally rescinded it, Provost Persis Drell expressed in a written statement to the Stanford community that the University’s policy has not changed and that the administration remains committed to fighting sexual assault.

After DeVos made the federal policy shift official, University spokesperson Lisa Lapin told The Daily that University administration had not changed its position since Provost Drell’s earlier statement.

The Department of Education’s new interim guidelines nullify a previous requirement that universities receiving federal money use the “preponderance of evidence” standard when determining guilt in sexual assault cases. Now, colleges are free to return to the “clear and convincing” standard of guilt that they were able to use before 2011, which the Obama administration banned in favor of the “preponderance of evidence” standard  in a “Dear Colleague” letter to colleges. The former standard only mandates that a suspect be found “more likely than not” to have committed the crime, while the latter requires that the suspect’s guilt must be found to be “highly probable.”

There is a chance that the Obama administration’s guidelines may be codified permanently for California schools, however. In September, the California state legislature passed Senate Bill 169, which requires all schools in the state that receive government funding to adhere to Obama-era guidelines on sexual assault. The bill currently sits before Gov. Jerry Brown, awaiting either his signature or veto.

“I am actually glad that Stanford made those statements that they were not going to let the Trump administration’s announcement affect the current [Stanford] policy,” said Stephanie Pham ’18, president of the student group Stanford Associated Students for Sexual Assault Prevention (ASAP). “However, I want to see what the University’s going to do with that statement.”

Matthew Baiza ’18, one of the co-founders of ASAP, expressed concern that the Trump administration’s actions might still set back conversation surrounding sexual assault on Stanford’s campus. He criticized “the narrative being created by the Trump administration” regarding false accusations of sexual assault, and suggested that it might “negatively affect a lot of the work that has been done here, on our campus, not only by ASAP, but also by the SARA office and by other student groups that have really worked to center the conversation on survivor experiences.”

Others at Stanford support DeVos’ new guidelines, saying they will protect defendants in Title IX cases.

“A ‘Dear Colleague’ letter [from the Obama administration] wreaked havoc and injustice all over the country, and it’s time to have some balance,” said Michael McConnell, Richard and Frances Mallery Professor of Law. “Without any deliberation or consultation with affected parties, the ‘Dear Colleague’ letter forced universities all across the country to adopt roles for these cases that essentially disregarded the due process concern for accused students.”

McConnell predicted, however, that universities will not change their current sexual assault policies in any significant way simply because DeVos rescinded the “Dear Colleague” letter and the rules it outlined.

“My guess is that the Department of Education will need to be more prescriptive about the due process protections that are necessary,” McConnell said.

Like Stanford, several universities, including Washington University in St. Louis, Yale University and California State University, Northridge, have announced that they plan to maintain their current Title IX policies and programs, which were created under the Obama-era guidelines.

“We are going to march on as we have,” Jim McHugh, the Title IX coordinator at California Lutheran University, told the Ventura County Star. “And not in any kind of defiance whatsoever. This is the process we have and it’s been working for us.”

Other university administrations have responded with ambivalence, reporting that they are not sure how to proceed under the new guidelines released by DeVos and the Department of Education.

Kathleen Salvaty, the Title IX coordinator for the University of California, told KQED that DeVos’ letter has caused “confusion,” and many universities have not yet announced any response to the reversal of federal policy. However, UC Berkeley President Janet Napolitano expressed opposition to DeVos’ changes in a statement last month.

Even if Stanford maintains its current policies regarding sexual assault in the face of the Department of Education’s new pronouncement, many in the community still remain divided over the status quo. Pham made clear that she and ASAP believe that the University’s current policy is not doing enough to support survivors of sexual assault.

“It’s … important not to lose sight of the criticisms that have been made of Stanford’s current policy, just because there’s this huge national conversation happening,” Pham said. “One of our main concentrations is going to be making sure that Stanford doesn’t go backwards with its policy.”

McConnell believes that in order to follow the Title IX law, ensuring that sexual assault survivors receive justice should not be the University’s only concern.

“To exactly the same extent that inadequate protections against sexual assault is a Title IX discrimination problem for women students, that denial of due process is sort of the mirror image for male students, and Title IX prohibits discrimination,” McConnell said. “It’s a statue that requires evenhandedness, not bias.”

McConnell added that Stanford’s current Title IX process achieves “evenhandedness” to a greater degree than some of its peer institutions, citing Stanford’s definition of sexual assault, which some like Pham have criticized as too narrow.

“Stanford has been more measured and more careful in some respects than at least some other universities have been,” McConnell said. “Stanford, unlike some universities, has drawn a distinction between sexual assault and other forms of sexual misconduct, and that is an important distinction.”

With conversations about sexual assault on college campuses intensifying at a national level, Pham wants to ensure that national concerns do not overshadow campus-level issues and potential reforms.

“We’re going to want a broader definition of sexual assault,” Pham said. “We’re going to want people to be held accountable. We’re going to want to look at the idea of the unanimous vote on the panels. These problems are still at hand, and we’re definitely not going to forget them or push them aside.”


Contact Sarah Wishingrad at swishing ‘at’ stanford.edu.

Sarah Wishingrad '18 is a former Desk Editor for the University/Local beat. She is a History major from Los Angeles, California who loves politics, the waffles at Coupa, and all things Jane Austen. Ask her about her dog, Hamilton, at swishing 'at' stanford.edu.

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