Here's Why Schools Might Not Change Their Approach To Campus Rape, Even If Betsy DeVos Does

Rape survivors and their allies fear Betsy DeVos will undermine their Title IX rights, but attorneys for schools and accused students don't expect a huge shift any time soon because policies have been in place for so many years.

Students shouldn’t expect radical changes on campus sexual assault policies, attorneys say, despite Education Secretary Betsy DeVos signaling that she wants to amend federal policies that critics say are unfair to accused rapists.

Attorneys who represent accused students and colleges say the policies put in place under the Obama administration have been there too long to simply erase, despite DeVos’s vow that change needs to come "quickly." DeVos made her comments after meetings Thursday with groups often at odds with one another over how colleges should handle sexual violence. DeVos’s remarks have stoked fears among rape survivors and their advocates, who fear losing the gains they achieved under President Obama.

A key issue discussed in the meetings was a 2011 directive from the Obama administration detailing what schools must do when a student reports a sexual assault. Survivors' advocates fear that DeVos will rescind the directive, just as her department earlier this year pulled a similar Obama-era mandate guaranteeing protections for transgender students.

Several attorneys told BuzzFeed News, though, that it’s doubtful most schools would alter their approach even if the directive were lifted.

"I don't see things on the ground changing very much, because schools have packaged these sexual misconduct policies and procedures, implemented them, and then presented those to the students," said John Graff, an attorney who advises schools on campus safety regulations.

“This has sort of become the way of doing business."

Advocates for accused students also are pressing DeVos to allow campus tribunals to use a higher standard of proof in determining guilt in sexual assault cases. The 2011 directive allows schools to use the preponderance-of-evidence standard, which means there must be at least a 51% certainty that allegations are true before someone is found culpable. That's a lower standard of proof than in criminal cases in US courts, which require that guilt be proved beyond a reasonable doubt. Even before the directive, Graff said many schools already used the lower standard in deciding sexual assault cases, meaning they’re unlikely to change the approach even if DeVos did away with the 2011 guidelines.

Indeed, both a 2002 study and a 2011 survey found that 4 out of 5 universities used the preponderance standard.

Attorney Naomi Shatz, who was present in one of the meetings on Thursday, said there was widespread support among university officials to keep the 2011 federal directive in place.

"A common refrain was, 'Let's not throw the baby out with the bathwater, let's try to work together to improve the situation,'" said Shatz, who has represented both victims and accused students in campus rape cases. What was clear from the meeting, Shatz said, is that universities have spent the past several years putting those Obama-era mandates in place and don't intend to scrap them all quickly.

There are other concerns accused students' advocates have about campus tribunals, but policy tweaks will have little impact on how tribunals are conducted as long as the people overseeing them remain in place, said attorney Andrew Miltenberg, who frequently represents college students accused of sexual assault.

"The greater issue is that most universities now are staffed with people who have a very definitive view of these cases and how these matters should unfold," said Miltenberg. "Most of the people in the positions of power and decision-making spots, like Title IX coordinators or investigators, or policymakers, are people who have a victims' rights background or victim-centric experiences."

Michelle Owens, a Nashville-based attorney who assists students accused of sexual misconduct, said she hasn’t seen any marked change in schools’ attitudes toward upholding Title IX since DeVos’s confirmation, despite some advocacy groups’ concerns that victims of assault could suffer.

Defenders of accused students, like Families Advocating for Campus Equality, do not think it's realistic that colleges would ever stop handling sexual assault cases altogether.

"Most schools are now definitely on notice that they need to take action on these cases," said Cynthia Garrett, copresident of FACE, who met with DeVos on Thursday. "I think the victims' advocates will find [the department] is not going to take everything away."

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