Joe Biden and Barack Obama rewrite rules on college sexual assaults

By Juliet Eilperin

U.S. President Barack Obama, joined by Vice President Joe Biden. Photo / Getty Images
U.S. President Barack Obama, joined by Vice President Joe Biden. Photo / Getty Images

Last month, Vice President Joe Biden penned a searing letter to the victim in a notorious Stanford University rape case. "I am filled with furious anger," he wrote, "both that this happened to you and that our culture is still so broken."

Biden's letter encapsulated the national outrage that erupted when the woman's attacker was sentenced to just six months in county jail. It was also a sharp reminder that one of the Obama administration's most ardent policy initiatives has been a concerted campaign to end the scourge of sexual assault on college campuses.

According to White House officials, top members of the administration - including the president, the vice president, their wives and members of the Cabinet - will not visit institutions whose leaders they consider insufficiently serious about pursuing sexual-assault allegations and punishing perpetrators.

Biden said in an interview that he would like the federal government to "take away their money" if a college or university fails to change its ways.

As the administration nears its end, the urgency of some proposals has dissipated, but the focus on campus sexual misconduct has intensified: "Now's the time to put the pedal to the metal," Biden said.

Already the efforts of this White House have dramatically transformed the way colleges and universities respond to allegations of sexual misconduct. The Education Department has 253 ongoing investigations at 198 postsecondary institutions into the handling of sexual violence.

Hundreds of schools have taken steps to make it easier to report allegations and discipline offenders. Many schools have appointed a specific officer to receive complaints and have determined that a "preponderance of evidence" is enough to establish that misconduct occurred, a less rigorous evidentiary standard than the "beyond a reasonable doubt" that applies in most criminal cases.

The changes have also provoked criticism from some students and administrators, who see the federal involvement as heavy-handed and sometimes unfair.

One general counsel for a liberal arts college, who sought anonymity out of fear of federal retaliation, lamented that following the administration's approach can put those accused of sexual misconduct at a disadvantage since so many incidents involve "two individuals who are alone and behind closed doors."

Brock Turner was only sentenced for 6 months for sexually assauliting a woman. Photo / AP
Brock Turner was only sentenced for 6 months for sexually assauliting a woman. Photo / AP

That makes some of these cases "massively difficult to resolve," the official said, adding, "We are committed to being fair and equitable to all of our students."

The administration has also launched a public-awareness campaign, "It's On Us," which encourages men and women to intervene before sexual assault takes place. More than 344,400 people have taken the White House pledge, and 530 schools in 48 states have active It's On Us chapters.

The administration's approach - through federal enforcement of civil rights protections and a campus-based advocacy campaign - was spurred in part by an emboldened group of survivors who have gone public with their complaints about their schools' unresponsiveness.

But it also reflects the activism of Biden and President Barack Obama, who became alarmed at the idea of rape as a fixture of college life.

Biden said he spoke to Obama about the issue even before they won the White House in 2008, requesting a staff to work on violence against women "within the office of the vice president," rather than at the Justice Department.

"He said, 'OK.' He knew how strongly I felt about it," Biden said, adding that over time Obama became more engaged with the issue. "He always thought it was an awful abuse of power. But as his daughters grew, he became more explicitly focused on it."

Reports of campus sexual misconduct are on the rise, which academic and legal experts attribute to heightened awareness of the issue. United Educators, a firm that provides insurance and risk-management services to nearly 1,300 U.S. schools, found that reports of sexual-assault claims among its clients doubled from 2011 to 2013.

Kevin Kruger, president of Student Affairs Administrators in Higher Education, said his members have taken a harder look at how they treat allegations of misconduct and at why more students don't come forward to report violations.

"We had become a little complacent about thinking this is a societal problem, and we were not doing enough about it," Kruger said, adding that survivors had "called out higher education and said, 'You're not doing enough,' and they were right."

The legal underpinnings for the current strategy lie in Title IX, a provision in a 1972 education law barring sex discrimination at schools that receive federal money. A 1992 Supreme Court ruling established the standard of rape as discrimination. The court ruled that a student in a Gwinnett County, Georgia, public school was a victim of sex discrimination under the law after a teacher subjected her "to coercive intercourse."

In 2001 the Education Department's Office for Civil Rights issued guidance that sexual harassment constituted a threat to students' ability to pursue educational opportunities.

In 2009 Obama appointed Russlynn Ali, a longtime advocate for students of color, to head that office. Ali was appalled by accounts that a 16-year-old was repeatedly raped and beaten in a courtyard outside her high school's homecoming dance in October 2009 in Richmond, Calif. Many witnessed the attack without calling police.

Vice President Joe Biden. Photo / AP
Vice President Joe Biden. Photo / AP

"I remember feeling like we had to do something," Ali recalled. "Children were being raped at our schools. ... Of course we were going to use everything in our power to do something about it."

At the same time, Biden asked his staff to compile statistics on violence against women in the United States to compare with data from before Congress passed the Violence Against Women Act he wrote in 1994. For girls and women 16 to 24 years old, he recalled, the numbers remained unchanged. "It was devastating," he said.

Ali, working with White House staff, penned a "Dear Colleague"letter in 2011 informing school administrators across the country that sexual violence constituted a form of sexual harassment and that if they did not take sufficient steps to prevent and address sexual misconduct, they would be found in violation of Title IX and could risk losing federal funds. A 2014 White House task force report fleshed out the protocol.

Cari Simon, a lawyer who has represented dozens of campus-assault survivors, said aspects of the guidance, like accommodations to shield victims from subsequent harassment and trauma, were critical to avoid them going into "a downward-spiral path."

But Sen. Lamar Alexander, R-Tenn., chairman of the Committee on Health, Education, Labor and Pensions, calls the guidance overreach. He said he welcomed the It's On Us campaign but that the Education Department must make it clear that its "guidance does not have the force of law."

More than 100 students have challenged some aspect of their school's adjudication process since the 2011 letter, according to the Foundation for Individual Rights in Education, which promotes free speech and other liberties at colleges and universities.

In one case, a student - "John Doe" - sued and later settled with Brandeis University after his ex-boyfriend accused him of "numerous inappropriate, nonconsensual sexual interactions" during an almost two-year relationship.

In allowing the case to move forward, U.S. District Judge F. Dennis Saylor IV wrote that reducing sexual assault was a "laudable" goal but noted that whether "the elimination of basic procedural protections - and the substantially increased risk that innocent students will be punished - is a fair price to achieve that goalis another question altogether."

Catherine Lhamon, who succeeded Ali as the Education Department's assistant secretary for civil rights, said her office is "constantly in reevaluation over whether what we are doing is right" but that schools are legally obligated to ensure sexual violence does not undermine students' educations.

"Certainly, from 1992 forward," she said, citing the year of the Supreme Court's rape ruling, "I have no sympathy for a frank abdication of responsibility for the students you are charged with educating and whose civil rights are being violated."

US vice president Joe Biden. Photo / AP
US vice president Joe Biden. Photo / AP

When the civil rights office releases a voluntary agreement with an institution, it also issues its own "findings of fact." Schools are briefed on the findings but do not see them in advance.

Terry Hartle, senior vice president at the American Council on Education, called the civil rights office "a Court of Star Chamber, with arbitrary rulings, no rights for those under investigation and a secret process."

In response, Lhamon said, "I appreciate that they would like to negotiate it, but it is not actually theirs to negotiate."

Although the federal disciplinary guidance remains controversial, the campaign for bystander intervention that the White House launched in 2014 has won widespread support. Obama himself proposed the idea of involving men in ending sexual misconduct, according to aides.

Matt Hill had agreed to help launch It's On Us in September 2014 while serving as the student body president at the University of Illinois at Urbana-Champaign. About a month later, a friend called to say that she had been raped the night before at a campus party.

Hill said he asked himself, "Why, a month ago, as a male junior in college, did I not think this was an important issue?" The following April, he helped organize a 2,000-person campus rally where Biden was the featured speaker.

At a party that weekend, two sorority members he knew told him they had been raped. The women told him the Biden rally left them feeling "empowered and supported."

And apart from the campaign, students have started demanding more accountability from schools. Kansas State University is being sued by two students, Sara Weckhorst and Tessa Farmer, who say they were raped at different fraternity houses, in 2014 and 2015, and now share the campus with their assailants because the university refuses to investigate sexual assault off campus.

On Friday, the Justice Department filed two separate amicus briefs on the students' side, arguing their Title IX suits should go forward.

Zach Lowry, president of the interfraternity council there, is pressing the university to investigate those allegations and others. Kansas State gives his group reports of sexual misconduct so the council can decide whether to discipline any of its 24 member organizations, but the school offers no assistance in investigating the claims.

"It's like pushing these incidents aside and not dealing with them," Lowry said. "I want to find out if these incidents happened."

For this part, Biden continues to meet privately with women and men, in settings ranging from college campuses to a hallway at the Academy Awards. He ushers out most of his staff, and the men and women tell him their stories.

Laura Dunn, who founded the victims rights group SurvJustice and who filed a federal complaint against the University of Wisconsin in 2006, picketed the Education Department in 2013 for not doing enough to hold universities accountable. But she has also met with Biden twice and has advised the administration on its campus-assault policies for several years.

"I think the government heard us," Dunn said.

- Washington Post

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