DeVos declares how government deals with campus sexual assaults is a ‘failed system'

K-12 cases among backlog of investigations
Posted at 11:55 AM, Sep 07, 2017
and last updated 2017-09-07 16:06:26-04

Education Secretary Betsy DeVos announced Thursday a review of how the department investigates sexual assault in schools, saying it’s time to replace the Obama administration’s “failed system.”

It’s a first step toward rolling back stricter Obama-era guidelines for handling sexual assault, potentially changing how the Department of Education handles hundreds of sexual violence cases brought by students at universities, colleges and K through 12 schools that receive federal funding.

The Education Department reports one active sexual violence investigation in the Carlsbad Unified School District.  There are also active cases in higher education at University of San Diego and California State University, San Marcos.

In a speech Thursday to a group of about 100 invited guests at George Mason University’s law school outside of Washington, D.C., DeVos said the department will begin collecting comments from the public about its investigations of Title IX sexual violence cases.

“The current approach does a disservice to everyone involved,” DeVos said. “That’s why we must do better.”

She credited the Obama administration’s Education Department for spotlighting the issue of campus sexual assault, but said it “weaponized” the department’s investigative Office for Civil Rights, overlooking the rights of the accused and burdening school systems with confusing and elaborate guidelines for handling Title IX claims.

Advocates for sexual assault survivors are concerned DeVos will ease guidelines put forward in 2011 that increased schools’ Title IX responsibilities for investigating and responding to sexual assault.

“Betsy DeVos is pulling the rug out from victims of sexual violence and their families at our nation’s campuses and schools,” said Cari Simon, a Denver-based attorney who represents parents of elementary and secondary school students who file Title IX sexual abuse cases. “DeVos made clear that she wants to pull the vital protections put in place by the Department of Education to protect and support survivors, and instead focus on those accused of rape.”

The 2011 guidance also led to a surge of Title IX sexual violence complaints filed at the Education Department from college and university students and from families of K through 12 students, a group that tends to receive far less attention.

The office was investigating 153 sexual violence complaints against K-12 schools as of Sept. 6. The cases are from students who report being sexually assaulted by other students, or by teachers, coaches and anyone else who interacts with them during the school day or school-related activities. They are in addition to the 360 unresolved sexual violence investigations involving colleges and universities.

The department has a goal of clearing each investigation within 180 days, but a Scripps News analysis found K-12 cases are an average of about 17 months old, almost three times the six-month benchmark. The oldest open K-12 complaint dates back to 2010. Cases languishing for years can mean an agonizing wait for resolution for the students, those accused of wrongdoing and the school districts placed on a publicly available list of pending Title IX cases. 

“This system, failed system, has generated hundreds upon hundreds of cases in the Office for Civil Rights, mostly by students who believed their schools let them down,” DeVos said.

In 2011 the Office for Civil Rights under President Obama sent a memo to schools saying their Title IX responsibilities required immediate investigation of sexual violence claims. It also said schools must act even when police investigations are underway, and said schools must have procedures for students alleging sexual assault to appeal their cases to the Education Department. The letter, combined with greater awareness about campus sex assault, led to a surge in sexual violence complaints at the Office for Civil Rights, from 33 pending cases at both the college and K-12 level in 2011 to 513 cases today. 

The backlog includes the case of a 7th grade boy who reported being raped in a bathroom stall by a fellow student during a lunch break at a public school in Northern Virginia. His parents, Deborah and Martin, asked that their last names not be published to guard the privacy of their son.

The parents filed a Title IX sexual violence complaint against Fairfax County Public Schools at the U.S. Department of Education, saying the district mishandled their son’s assault claim, violating his civil rights.

“Our aim by going to the Title IX route is to force some accountability for the school here,” said Martin, the father of the Virginia student who reported the assault. “They can perform an investigation. They can find out what happened. There are some remedies they can apply and hopefully no one else at the school will have to go through this.”

Deborah said the assistant principal waited until the end of the day to call her and described the incident involving her son as a game of chase, later saying there might have been some inappropriate touching.

After hearing her son’s version of the story over the weekend, the boy’s parents said they demanded that the school resource officer investigate their son’s claims. The officer recommended the boy go to the hospital, where a nurse said it appeared he had been sexually assaulted. By then it was too late to obtain biological evidence for police.  “The school didn’t protect our son,” Deborah said.

A spokesman for Fairfax County Public Schools said federal law prevents discussing the student’s claim. He said the school system vigorously pursues and investigates all allegations of inappropriate behavior by students and staff, including allegations of sexual harassment and Title IX violations.

Deborah and Martin’s son now attends private school, suffering PTSD-like symptoms.

The family, the accused student and the school district have all been waiting two years for the Education Department’s Office for Civil Rights to resolve the case. They have heard nothing since an initial interview by the Office for Civil Rights. The office investigates sexual assault and harassment claims against colleges and K-12 schools that receive federal dollars when a student’s Title IX rights may have been violated.

Title IX protects against discrimination on the basis of sex in education programs and can include cases of sexual assault and harassment. Victims or their parents can file complaints at the Office for Civil Rights when they feel their schools did not adequately investigate their cases.

The probes can expose widespread problems with how individual schools and school districts handle sexual misconduct. The outcomes can include prescriptions for schools to provide new training for employees and develop new methods to report and track sexual abuse.

“That’s the beauty of what the Department of Education can and should be doing,” Simon said.

Supporters of sexual abuse survivors are concerned DeVos will ultimately shortcut investigations.

“Ultimately, getting through the complaints matter but we want to make sure they are robust investigations and understand systemic issues that are going on,” said Anne Hedgepeth at the American Association of University Women. “We have always said OCR needs more resources.”

Instead of seeing more resources, the OCR might lose manpower. The Trump administration has proposed reducing the number of staff at the Office for Civil Rights. The proposed 2018 budget would eliminate 46 positions in the office, leaving a staff of 569. It would continue the downward trend in staffing levels since 1980.

“The Office for civil rights has some of the lowest number of employees it's had since the ‘80s with some of the highest numbers of complaints coming in,” Hedgepeth said.

The staff cuts are necessary to pay for raises and other fixed costs, the Education Department said. The budget for next year calls to keep funding levels flat.

“Concerns that OCR’s new approach will limit investigations or preclude addressing systemic or class-action type issues are misplaced,” an Education Department spokesman said in an emailed statement. But its own budget request said the planned staff cuts could lengthen Title IX investigations.

“At the reduced (staff) level, the number of days to complete investigations may continue to increase,” the Office for Civil Rights budget request states.

DeVos did not say when the review would conclude and did not outline a timeframe for potentially changing Title IX investigations.