Incoming Trump administration heightens anxiety about reversal in Title IX progress

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President-elect Donald Trump selected Betsy DeVos as his nominee for secretary of education.

When Maddy Moore arrived at Georgetown University as a freshman almost four years ago, she signed up to be a peer educator on sexual assault. At that time, there was growing momentum behind the issue on college campuses across the country.

In 2011, the Department of Education's Office for Civil Rights had issued a Dear Colleague letter that established sexual violence on college campuses as a matter of Title IX law. A truly equal and accessible learning environment is free of sexual harassment, the OCR directed, and schools were obliged to comply. The OCR expanded its guidance in 2014 to include gender identity as a protected status.

As she studied international relations, Moore became further involved on campus. She wrote editorials and led educational sessions for students and sports teams. She's worked with other college groups in Washington, D.C., and she felt like finally survivors were being heard -- that people were starting to understand the pivotal concept of consent, and that hard work and grassroots advocacy was making a difference.

But with the election of Donald Trump, who confided on tape to a reporter that he can kiss and grab women by the genitals without their consent, Moore, now a senior, and her peers are concerned.

"There's so much fear among survivors and marginalized communities about what's going to happen," Moore said.

Their worry stems from the fact that the new protections laid out in the 2011 Dear Colleague letter aren't ironclad, nor are they universally embraced. The Trump administration will be able to shape the direction of Title IX policy, including repealing the 2011 OCR directive. Plus, education secretary nominee Betsy DeVos, whose confirmation hearing starts Tuesday, is relatively unknown in the field she has been picked to lead.

According to The New York Times, DeVos is a billionaire and a Republican donor who, along with her husband, has an investment firm that has holdings in companies that refinance student loans. Her experience in education, according to the Times, has been as a donor and board member of organizations that advocate for vouchers that help families attend private and religious schools.

While she hasn't spoken publicly about campus sexual assault, she gave $10,000 to the Foundation for Individual Rights in Education, which is challenging the standard of proof on victims of sexual assault in university hearings. And DeVos' family has funded organizations that have supported anti-LGBTQ causes, according to Politico. A spokesman for DeVos didn't respond to a request for comment.

Last week, the nationwide student-led group End Rape on Campus and Know Your IX started the #DearBetsy campaign, in which rape survivors and advocates could tell their own stories about how important the issue was to them.

"It's hard because we feel like we have to provide an education on this issue," EROC's co-founder and director of education Sofie Karasek said. "And we really don't know what she knows about this issue."

Neena Chaudhry, the director of education and senior counsel at the National Women's Law Center, said Title IX's guarantee of an equal opportunity to an education is unlikely to change, but each administration chooses where it wants to put its energy and resources. Title IX, as it's written, doesn't include sexual assault and gender identity under its protections -- those came from OCR letters and guidance, which can be rescinded.

Last week, Democratic Senators Bob Casey (Pennsylvania) and Patty Murray (Washington) sent a letter to Trump urging him not to roll back the rules on campus rape.

"We've made an enormous amount of progress addressing sexual assault in the last 10 years," Karasek said. "The Obama Administration did a great job of defining what schools are supposed to be doing. We really benefited from the administration making it clear where they stand. It's beneficial for survivors and for schools."

Not everyone has embraced the evolution that Title IX underwent during the Obama's presidency, and some lawmakers are looking at the administration change as an opportunity to reshape policy. Republican Senator James Lankford (Oklahoma) and Representative Virginia Foxx (North Carolina) have both expressed interest in scaling back the scope of the OCR, which is the education department division that enforces Title IX.

Clearly [sexual assault] is a problem and should be addressed. At the same time, what the Obama Administration did in the Dear Colleague letter has gone way beyond.

Harvard Law School professor Elizabeth Bartholet

In May, a group of law professors wrote an open letter about what they see an overreach of the Dear Colleague guidelines, saying the OCR "unlawfully expanded the nature and scope of institutions' responsibility to address sexual harassment." For opponents of the 2011 directive, having schools step in for courts doesn't create a fair system of justice and may treat alleged perpetrators unfairly.

Harvard Law professor Elizabeth Bartholet, who signed the May letter, said the new interpretation of the scope of Title IX has lowered the bar to serious consequences, such as expulsion.

"Clearly [sexual assault] is a problem and should be addressed," Bartholet said in a phone interview. "At the same time, what the Obama Administration did in the Dear Colleague letter has gone way beyond."

The standard of proof to be found responsible for sexual assault in the campus process is lower than it is in the criminal justice system, and some who have been through the process have protested the fairness. Each school is different, but the rights of the accused to be able to see evidence and interact with those making a claim against them are less standardized than in criminal court. CNN reported on some of the complaints about the school tribunals.

"In an effort to preclude a costly Title IX investigation, some institutions interrogate accused students before informing them of the specific conduct code they are alleged to have violated," the letter reads. "In the aftermath, innocent suspended and expelled students have become mired 'in academic and professional limbo,' impairing or destroying their access to a college education, thereby relegating them to a lifetime of diminished income and social stigmatization as sexual offenders."

Bartholet said she is encouraged that perhaps the incoming administration will review the 2011 Dear Colleague letter and replace the guidelines with something fairer to those accused of assault on campus.

Still, to advocates of victims of sexual assault, justice isn't always afforded in court, either. Consider the three months of jail served by convicted rapist and former Stanford swimmer Brock Turner, or the comment from a New York City police captain, who said a spike in rape cases was "not a trend that we're too worried about" because the alleged victims were raped by people they knew, rather than by strangers. And according to the Rape, Abuse & Incest National Network, out of every 1,000 rapes, 57 lead to arrest and seven lead to a felony conviction. 

Mahroh Jahangiri, the executive director of Know Your IX, said that a change in direction by the new administration could undermine existing cases under investigation, many of which have already been underway for months.

"We are not anticipating the OCR completely shutting down," Jahangiri said. "That said, the current OCR has been drastically understaffed; it can take years to complete an investigation, and by that time, the student that filed it is often out of school."

But beyond policy, women's rights advocates are concerned about the tone that President-elect Trump will set. Jillian Murray, who was frustrated by the way the University of North Carolina at Durham responded to her report of sexual assault and is now suing the school, has been apprehensive about the allegations of harassment made against Trump and by the way he boasted about touching women without their consent.

"I'm actually afraid having Trump in the White House will embolden perpetrators, and that can extend to college campuses," Murray said.

Despite a new presidential administration, what isn't changing is the grassroots commitment to this issue from the men and women who have spent years lobbying their campus officials for change. Moore says that sports teams at her school now watch the documentary "The Hunting Ground" and take part in workshops on consent.

Jahangiri said it's important for survivors to be able to go to their schools in the event of sexual assault, with trained staff members in place to deal with the emotional trauma and healing.

"That pressure of student activists isn't going anywhere," Jahangiri said.

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