On Friday, after weeks of speculation and swirling concern on the part of advocates for campus sexual assault survivors, the Trump administration made it official. Specifically, Secretary of Education Betsy DeVos announced that the department will undo Obama-era Title IX guidelines aimed at protecting student victims of sexual assault, arguing that the existing guidelines weren't suitably fair to the due process rights of the accused. And if you're looking for one huge change in DeVos' new sexual assault guidelines, there's one that pretty clearly tells the tale.
The news of the Trump administration doing away with the old campus sexual assault guidelines has drawn a heavy amount of criticism to DeVos and her department from anti-sexual assault advocacy groups, and a lot of scrutiny on how the new guidelines will work.
Well, one major provision is now making the rounds on social media, and as far as changes to an existing system go, it's a big one. According to a Q&A released by the Department of Education earlier this month, colleges will now have the choice to either allow both the accuser and the accused to appeal a decision regarding a sexual assault case, or to only allow the accused to appeal it. In other words, a college could elect to allow a perpetrator of sexual assault ― or an alleged one, at any rate ― to appeal a decision against them, but not give their accuser that same right.
The Q&A, which serves as an interim explanation of the department's campus sexual assault guidelines going forward, states that schools have the following options for offering the right to an appeal.
If a school chooses to allow appeals from its decisions regarding responsibility and/or disciplinary sanctions, the school may choose to allow appeal (i) solely in the responding party, or (ii) by both parties, in which case any special procedures must be equally available to both parties.
In other words, schools would get to decide what appeals process to use, if they even allow them at all. But there are only two options given for allowing them: one that provides an equal appeals process for both the accused and the accuser, and one that would only extend that opportunity to the accused. In the 2011 guidelines, the appeals process was stated to be available to both sides.
A school must provide a grievance procedure for students to file complaints of sex discrimination, including complaints of sexual violence. These procedures must include an equal opportunity for both parties to present witnesses and other evidence and the same appeal rights.
The fact that sexual assault accusers could appeal a contrary decision became a major point of criticism for opponents of the old guidelines, even though that ability wasn't exclusively carved-out for accusers. While the new guidelines do state that schools can choose to allow both sides to appeal, they also specifically raise the notion of enabling appeal "solely in the responding party."
The "Dear Colleague" letter announcing the new guidelines on Friday was written by Candice Jackson, the deputy assistant secretary at the Office of Civil Rights. Jackson's ability to impartially make decisions regarding sexual assault policy was called into question back in July, when she dramatically asserted with no statistical evidence that 90 percent of rape and sexual assault allegations were false or overblown:
Rather, the accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.
Jackson ultimately apologized for the statement, and despite some Democratic senators calling for her to be fired, she has remained on the job ― and firmly enmeshed in the process of crafting policies on sexual assault ― ever since.