Why Does the Department of Education Want to Put Sexual Assault Survivors on Trial?

“You know you are not on trial," said Senator Kamala Harris (D–Calif.). "You are not on trial.” It was September, and Sen. Harris was addressing Christine Blasey Ford, who’d come before the Senate Judiciary Committee to testify against then nominee (now Supreme Court Justice) Brett Kavanaugh.

It had already been a heartbreaking few hours—few weeks, really. So much of it blurs together, like a horror movie. But I’ll never forget the relief and pain I saw on Blasey Ford’s face when Sen. Harris reminded us all that holding people to account should never mean putting a survivor on trial. Just as the Senate Judiciary Committee shifted so much of the burden, shame, and scrutiny onto Blasey Ford, systems that are supposed to be created to help survivors seek justice often instead shift a massive burden to the survivor. Doing so keeps survivors from reporting and can retraumatize them in the process.

That’s just one reason I’m raising the alarm about the new regulation on Title IX that Secretary of Education Betsy DeVos released last week. If it becomes law, these rules could force millions of student survivors of sexual assault and harassment to endure the same kind of cruel process Blasey Ford did. It's a sham procedure, not to mention one that puts the survivor on trial and gives the benefit of the doubt to the perpetrator, instead of seeking the truth.

While Kavanaugh apologists waved off the accusations of misconduct against him, suggesting that violence committed in high school is either somehow irrelevant or outside the jurisdiction of the Senate committee, the new regulation intends to give schools similar latitude, claiming that these institutions should not be responsible for investigating and intervening in many instances of sexual violence that affect their students.

According to the regulation, schools would not be required to investigate assaults that take place in several off-campus locations, shutting out the thousands of survivors who are assaulted at parties, bars, or online. Schools would now be required to investigate only complaints made to individuals who are empowered "to institute corrective measures" like a Title IX coordinator. What does that mean? In short, that schools would have zero obligation to start the formal complaint process if claims of assault are raised with coaches or resident advisers. If it's hard to picture what an impact that could have, let me put it like this: Under the new rule, Michigan State University may not have been required to intervene in the case of Larry Nassar, because reports of his sexual abuse were made to coaches and athletic trainers. Further, the definition of sexual harassment that schools can now investigate is so limited and narrow that survivors could have to endure severe and repeated harassment before their treatment would "count" toward a Title IX complaint.

This proposed regulation from the Department of Education has been written in a manner that could prevent survivors from reporting their assaults and let schools avoid investigating Title IX complaints (and the bad press and expense that comes with it). Make no mistake: This will not make campuses safer, nor will it end sexual violence. What it will do is cause a huge decrease in reports of sexual violence at schools.

If it takes effect, this rule could make reporting and investigation procedures for survivors cruel, degrading, and difficult to access, in the hopes perhaps that survivors will give up on reporting if the process retraumatizes or marginalizes them enough.

Moreover, the regulation would disproportionately affect students of color, LGBTQ students, students living with disabilities, and low-income students by creating additional traumatic barriers to healing and justice. And in a flagrant misapplication of Title IX, which was implemented to protect and expand opportunities for women in education, the rule allows named harassers to claim sex discrimination if the school opens an investigation into their conduct.

Thanks to the Me Too movement, we’ve all become more attuned to the needs of survivors, and millions of us are committed to ending sexual violence. We have made believing survivors (and seeking justice) a powerful moral imperative for all. But I fear that people in power—like school administrators, senators, and DeVos herself—continue to pay lip service to the importance of taking survivors seriously, while simultaneously making it almost impossible for them to be heard. It's not enough to claim that we “support survivors” if we don't commit to policies and proposed action that would do just that.

Everyone who was disturbed by the treatment of Blasey Ford before the Senate should be concerned now. This regulation will make schools more dangerous and, at the height of the Me Too movement, could take us backward.

While these provisions are horrific, this rule is not a foregone conclusion. Unlike our senators who ignored their moral and democratic duties to heed our calls to believe survivors, the Department of Education is obligated to listen to our critique of its rule through the notice-and-comment process. This rule can be stopped if all of us who were outraged on behalf of Blasey Ford submitted a comment that expressed our opposition to this regulation. Submitting a comment that the federal government will “count” must meet certain requirements—but End Rape on Campus and Know Your IX have built tools to ensure that your voice can be heard. Learn more at HandsOffIX.org.

Jess Davidson is a survivor of sexual assault, and the executive director of End Rape on Campus, a national nonprofit dedicated to ending campus sexual assault through direct support, education, and policy reform.