Devos poised to roll back campus sex assault policies

July 28, 2017 GMT

The University of Montana, for all its struggles in recent years, can proudly claim some important successes. One of the most important of these is its work in prevention and response to sexual assaults on campus.

The reforms instituted at UM have been held up repeatedly as a model not just for other education institutions in Montana, but across the U.S. And that comes not a moment too soon, given the longstanding, nationwide problem of sex assault on campuses. The U.S. Department of Education puts the number of college victims, admittedly under-reported, at 20 percent of women and 6 percent of men.

And yet the Education Department, under new Secretary Betsy DeVos, appears poised to roll back critical improvements like those made at UM, returning college campuses to an outdated system that allows rapists to go unpunished — and free to rape again.

This line of thinking must be disputed in no uncertain terms. We cannot allow all the progress made at UM to unravel due to ignorance and a too-weak response to bad suggestions.


Montana Attorney General Tim Fox, who was so instrumental in helping the Missoula County Attorney’s Office under former County Attorney Fred Van Valkenburg reach an understanding with the U.S. Department of Justice, must take a firm position in support of the campus sex assault guidelines adopted during the Obama administration.

Fox, a Republican, must be among those making a forceful argument to Trump administration officials. He must unequivocally support the current recommended system, which makes it easier for university officials to support students who reported sexual assaults and penalize students who commit sexual assault.

DeVos held “listening sessions” that rightly garnered backlash for including representatives from so-call “men’s rights” groups in an apparent attempt to provide balance. Unbelievably, the acting director of the civil rights office for the Education Department, Candice Jackson, told the New York Times that Title IX investigations have not been balanced because “90 percent” of accusations “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 has since apologized, but it should concern every American that the person in charge of handling civil rights for the Education Department holds beliefs about rape that would have been considered ill-informed and outdated more than 20 years ago, and which is disproved by data from her own department.


The University of Montana became the focus of federal investigations five years ago, after allegations of sexual assault and the university’s handling of those reports, as well as the response from local police and prosecutors, were brought to the attention of the U.S. Departments of Justice and Education. Settlements were subsequently reached with each entity involved, and local agencies have since fulfilled the terms of those agreements.

In 2011, before the federal investigations began, the U.S. Department of Education directed all universities to use a preponderance of evidence standard for sexual assault investigations involving students. Previously, some campuses had relied on a “clear and convincing” legal standard that did not meet Title IX requirements. The Education Department mandate clarified the process and made it more consistent across campuses.

Most importantly, however, it allowed universities that found it more likely than not that sexual violence had occurred to discipline or expel the offender. This did not, of course, affect the criminal investigation process, which is conducted outside the university system.

Universities are not courts of law and do not have the investigative or legal authority of police. Rather, they are tasked with educating students in an environment where the civil rights of are students are respected equally. Title IX is based on ensuring equal access to federally supported education programs regardless of gender.

But the “clear and convincing” standard of evidence used by some universities wrongly applied a criminal legal definition to a civil rights matter, and stacked the deck from the get-go against those who reported being sexual assaulted. It meant that a university investigation might conclude that sexual violence had occurred, but result in no punishment whatsoever for the rapist.

The current guidelines have provided an important tool for universities to crack down on sexual assault, a widespread problem that has been allowed to fester for far too long. It boggles the mind that DeVos reportedly does not consider these guideline appropriate and is open to tossing them out.

That would return America’s college campuses to a system that should be left in the dustbins of history.

The entire Montana University System must swiftly and clearly communicate that to DeVos. AG Fox must speak up in support of the current guidelines as well. Politics aside, maintaining policy improvements that make our college campuses safer and protect our students from sexual assault is clearly the right thing to do.