Betsy DeVos’s Proposed Campus Sexual Harassment Guidelines Would Protect the Wrong Victims

Over the past two years, the #MeToo movement has elicited a tsunami of stories and critical conversations. It has been the vehicle through which women worldwide have made their voices heard, and newspaper front pages and social media posts alike have driven increased public scrutiny and accountability in cases of sexual misconduct. Education Secretary Betsy DeVos, however, is pushing the pendulum in the opposite direction and inhibiting further progress with her proposed campus sexual harassment policies.

In a November 2018 proposal, she presented drastic alterations in the way that schools handle sexual misconduct complaints. DeVos plans on narrowing the definition of sexual harassment significantly, increasing protections for accused students, and drastically reducing liability for educational institutions. Though attention is largely focused on higher-education facilities, the policies would also apply to elementary and secondary schools.

The Education Department claims the proposal would be fair for both accusers and the accused, and proponents argue that it would restore balance in a system that has been skewed too far in favor of the former. In defense of her proposals, DeVos asserted that “Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment.”

The new policies are to replace a set of guidelines created in 2011 under the Obama administration, which provided schools with an outline on how to handle sexual misconduct complaints. When DeVos rescinded these guidelines in September of 2017, she justified her actions by claiming that the Obama guidelines had pressured schools to take heavy action against accused students without giving them a fair chance to defend themselves.

With these changes, for the first time, the federal government would venture beyond mere guidance and recommendations in affairs pertaining to sexual misconduct. Instead, the ways sexual harassment is defined in our nation’s schools and the steps institutions are legally required to take to address it would be codified, a marginal benefit.

Moreover, DeVos’s proposal would certainly add protections for the accused, giving them a presumption of innocence throughout the disciplinary process and the right to review all evidence a school collects. They would also be able to indirectly cross-examine their accusers through a representative to avoid personal confrontation.

The rights of the accused would undoubtedly be protected and affirmed. However, if finalized, these rules would above all not protect students—they would protect schools. Minimization of the burden on institutions would take priority over justice for victims and guarantee of their safety. The Education Department projects that schools would save $286 to $367 million over the next decade from no longer having to take action, but no amount of money compensates for the cost of violating the rights of students.

Limiting what qualifies as sexual harassment, the new definition would require misconduct to be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.” Some courts, such as the United States District Court for the Middle District of Georgia, claim that rape would not “count” as harassment under these qualifications because it is a one-time act of violence and therefore not “severe” or “pervasive” enough. Thus, a victim of rape may not even be entitled to have her claims investigated by her school, let alone have them resolved. Thirty-four percent of sexual harassment victims drop out of college, yet DeVos’s new definition would enable claims that rape is not “severe” enough to “effectively deny a person equal access to education.”

Furthermore, under these new constraints, a school would only need to respond and act upon sexual misconduct if the act occurred within a school program or activity. If a 14-year-old freshman were to be raped at a park by her classmate, her school would not even be required to address the situation or provide basic measures of support, such as placing her in a different class from her rapist. At a press conference in late November, senator Patty Murray (D - Wash.) highlighted these concerns, arguing that the rules would bring the country back “to a time when sexual assault survivors were ignored and felt they had nowhere to turn.”

In addition, the Education Department would only hold schools accountable if it considered them “deliberately indifferent” to sexual harassment—a proposal that would benefit school lawyers but act to the detriment of students. In 2012, when a ninth grader was raped and incessantly tormented by her classmate, her school’s only response was a suggestion for her to drop out and enroll in an “alternative” school for poorly-performing students. When the victim sued the school in Doe v. Round Valley Unified School District, the judge decided that the school’s response wasn’t bad enough to render it “deliberately indifferent” or hold it liable.

By​ granting local school leaders copious freedom to decide whether or not, as well as how, to respond to their students’ claims of harassment, DeVos would nearly relinquish her department’s ability to hold schools accountable for mishandling sexual harassment. Without accountability, the risk of serious misconduct and cries for help going unaddressed heightens significantly. The occurrence of sexual harassment may be compounded by a lack of consequences for offenders. Protecting our schools by exempting them from some degree of responsibility comes at the cost of the safety of the students—which should be top priority.

According to the National Sexual Violence Resource Center, nearly two-thirds of college students experience sexual harassment, but over 90 percent of sexual assault victims on college campuses do not report the assault. Should DeVos’s policies be passed, an even more hostile environment for victims would be the result. They would be further discouraged from sharing their stories and seeking justice due to fears that their plight may be cheapened or invalidated by school officials no longer responsible for taking action. John B. King Jr., who served as education secretary under the Obama administration, has echoed these concerns. His recent statements express “dismay with the Trump administration’s cruel proposal that will have the effect of putting power in the hands of abusers and dissuading survivors from coming forward.”

The Trump administration’s new rules will have the force of law behind them and can go into force without an act of Congress after the set public comment period, which ended January 28, 2019. The allotted period for public input may have come to a halt, but the issues and implications that remain demand urgent further action. Research conducted by the Centers for Disease Control reveals that approximately one in four girls and one in six boys are sexually abused before the age of 18. Thus, as high school students, these policies concern and impact us just as much as they affect those who live on college campuses.

DeVos’s proposal would enable a significant inflation in the number of cases regarded as not “severe” enough to be addressed. To combat this silencing of victims and obstruction of rights, it must not be left up to schools to decide whether or not to have an appeals process. When presented with a victim’s claims, intervention, investigation, and aid should all be obligatory. No victim deserves to feel discredited or belittled by alleged lack of severity or accusations of dishonesty.

It is of utmost importance now that as students, we stand by and advocate for the rights of the afflicted one in four girls and one in six boys with whom we share classes. We’re obligated to make our voices heard so that theirs can be too. Succumbing to the new policies and the Trump administration’s desires to reduce the amount of money a school must spend to investigate, rather than to reduce the amount of harm that students experience, would be an attack on fundamental student rights.