Changes are coming to how sexual assault is investigated on college and university campuses, Education Secretary Betsy DeVos said Thursday, but it’s not yet clear what that overhaul could mean in Utah.
In remarks Thursday afternoon at George Mason University in Virginia, DeVos criticized the ”failed system” created by the Obama administration’s guidelines for Title IX — the federal education law that bans sex discrimination — and suggested schools were currently over-reaching in assault prosecutions.
Meanwhile, four Utah schools — Brigham Young University, the University of Utah, Westminster College and Dixie State University — are currently under investigation by the Department of Education’s Office for Civil Rights for potentially violating Title IX.
While light on details, DeVos called in her speech for review and public input on Title IX and Department of Education policies on how it is enforced, emphasizing the need to protect the rights of students who are accused of rape as well as alleged victims.
“The rights of one person can never be paramount to the rights of another,” DeVos said, according to transcripts of the speech. ”The notion that a school must diminish due process rights to better serve the ‘victim‘ only creates more victims.”
Of particular issue is a 2011 memo, known as the “Dear Colleague Letter,” issued by the Department of Education under Barack Obama. Among other things, the letter instructed campus administrators to move quickly when investigating accusations of sexual assault and struck a “preponderance of evidence” standard for establishing guilt and punishment — a lower threshold than the ”beyond a reasonable doubt” standard of the U.S. criminal justice system.
DeVos said Thursday that the “era of rule-by-letter is over” and that the accelerated pace of campus investigations and other guidelines prohibiting cross examination of alleged victims had given rise to false accusations of rape.
“Through intimidation and coercion, the failed system has clearly pushed schools to overreach,” DeVos told her audience. ”With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.”
Sherrie Hayashi, Title IX coordinator for the University of Utah, said that while DeVos’ remarks suggest changes are in store, there do not appear to be any new federal directives issued Thursday.
“I don‘t foresee any changes in the short-term,” Hayashi said. “I think we‘ll continue to focus on what we’ve been doing.”
BYU’s Title IX coordinator, Tiffany Turley, agreed, saying she does not expect any immediate updates to campus procedures.
“Nothing that she said changes our process at all right now,” Turley said.
Julie Valentine, a BYU nursing professor and sexual-assault researcher, said campuses have faced “shifting sands” on Title IX for several years.
Valentine said changes in Title IX guidelines have been expected since President Donald Trump’s election, and that college and university administrators need to base their policies on what is best for their students and grounded in the bedrock of federal law.
“I am grateful that a new program wasn’t rolled out today,” Valentine said, ”that there is a call for feedback.”
Valentine was part of an advisory council at BYU in 2016 that reviewed and recommended changes to the school’s Title IX and sexual assault investigation practices. The LDS Church-owned school, which employs an honor code that prohibits activities like alcohol use and premarital sex, had come under fire for its approach of investigating alleged victims for violations of campus rules.
BYU adopted an amnesty policy in June that shields sexual assault victims from honor code investigations. And Valentine said that the continued support of survivors is critical to any movement on Title IX.
"Whatever changes happen, my hope is that we will still be able to create campus environments that encourage reporting,” Valentine said. “It’s only through reporting that we can provide support and services to victims.”
Turley said additional guidance is likely from the Department of Education, raising concerns that the landscape around campus sexual assault could shift yet again. But she was confident that new policies in place at BYU establish a balance between the rights of accused students and alleged victims.
“Our primary focus is our students‘ well-being,” she said. ”And that won’t change.”
Candice Jackson, acting head of the Department of Education’s Civil Rights Office, recently sparked controversy after remarking in an interview with The New York Times that roughly 90 percent of rape accusations are false and are instead regret of consensual sex. Jackson later apologized.
While rape convictions on campuses are relatively rare — due in part to low reporting rates and the evidentiary burden of proving that a sexual act was non-consensual — researchers and advocates generally agree that false reports are also rare.
Valentine said Jackson’s remarks — coupled with DeVos’ repeated overtures on the need to protect students who are accused of raping their peers — has produced concern that new policies could dissuade victims from reporting sexual assaults.
“That statement, obviously, really concerns me,” Valentine said. “It worries me what direction we‘re going to be headed.”
Rep. Kim Coleman, R-West Jordan, has sought to bolster the rights of students in sexual assault investigations, including a bill last year that would have ensured the right to legal counsel and exchange of evidence.
Coleman said new policies adopted by the Utah System of Higher Education — including the ability of an attorney or other representative to provide statements on a student’s behalf — are a step in the right direction. But more work is needed, she said, and campus rules are relatively malleable compared to state statute.
“Fundamental civil rights should be codified in law,” Coleman said, “not in transient institutional policies.”
She said the 2011 Dear Colleague Letter was well-intended, addressing a critical issue on U.S. campuses. But, Coleman said, the standards established under Obama had the effect, in some cases, of ignoring or impeding due process rights of the accused.
“If the system isn‘t fair and reliable then it doesn’t work anybody,” Coleman said.
The West Jordan lawmaker said she was encouraged by DeVos’ stated intention to meet with those on all sides of the issue. “I know that this policy must be reviewed and modified,” she said, ”but I don’t know where she’s going to go with it.”
Valentine said critics of the Dear Colleague Letter have already taken aim at the use of campus climate surveys — anonymous questionnaires designed to obtain an honest picture of campus safety — as well as the “preponderance of evidence” standard.
Campus surveys are valuable, she said, given that other data collection methods often fail to include victims afraid or unwilling to report sexual assaults.
Valentine said it was appropriate for campus administrators to apply a lower evidentiary standard than a criminal court, given that they are involved in maintaining campus safety and deciding expulsion as opposed to incarceration.
“They’re not imposing rulings that send people to prison,” she said. ”They’re not imposing rulings that will cause somebody to be a registered sex offender for life.”
And Geoff Landward, an assistant commissioner with the Utah System of Higher Education, or USHE, said the “preponderance of evidence” standard has been adopted in statewide policies for public colleges and universities.
Landward said Utah higher education administrators might be compelled to push back against new federal guidelines if they differed from or contradicted state policies.
“If they change the standard [of evidence] we would have to look at what change they made and whether or not it‘s in the best interest of the students,” he said. “We have to continue to achieve our goal, and that is to protect students but also to make sure that the system is fair and that it’s working.”
He said the guidelines of the 2011 Dear Colleague Letter were consistent with the direction of Utah schools. And the protection of due process rights for the accused, Landward said, is already a USHE priority.
“If that‘s [Devos’] emphasis, I think we’re already ahead of the ball game,” he said. “It‘s a little early for us to know whether or not we have cause to be concerned.”
While not currently under investigation by the Office for Civil Rights, Utah State University also adopted new procedures in recent months in response to concerns over its handling of campus sexual assaults.
In a prepared statement, USU spokesman Eric Warner emphasized that student safety is paramount. He referred to a series of events being held at USU this week on topics such as consent and healthy relationships as evidence of the school’s efforts to combat sexual assault.
Warner said the school would “will wait to learn more” how DeVos’ speech develops into new Title IX policy.