Government

Candice Jackson on Campus Sex Assault: ‘We’re Not Asking Schools to Step In as Courts of Law’

October 26, 2017

Evan Vucci, AP Images
Candice Jackson, the U.S. Education Department’s acting assistant secretary for civil rights: "I don’t think that a presumption that you’re not going to be held responsible until you’re proven responsible in any way means that the system is set up unfairly against the person who came forward."

In a rare public appearance, Candice E. Jackson, acting assistant secretary for civil rights in the Department of Education, spoke to lawmakers on Thursday about her office’s new philosophy on campus sexual assault.

Ms. Jackson, who drew heated criticism last summer for suggesting that most campus rape cases involve alcohol and regretful female students, is overseeing how the Office for Civil Rights is adjusting its approach to enforcing Title IX, the gender-equity law, and how it applies to sexual violence. Her comments brought some clarity to what’s driving the thinking of federal officials on the issue.

Just before the task-force meeting, the department announced that Kenneth L. Marcus, founder and president of the Louis D. Brandeis Center for Human Rights Under Law, would be nominated to hold the permanent civil-rights job. If Mr. Marcus is confirmed, Ms. Jackson would remain at the department as deputy assistant secretary for strategic operations and outreach.

Ms. Jackson was part of a panel of experts who spoke to a U.S. House task force that’s examining how both colleges and public schools can improve their response to sexual assault.

Last month the Education Department withdrew two key guidance documents, put in place by the Obama administration, that spelled out colleges’ responsibility to respond to sexual violence and ramped up the pressure on institutions to take the issue more seriously.

Supporters, including advocates for sexual-assault victims, say the Obama administration’s aggressive Title IX enforcement has held colleges more accountable and encouraged more victims to come forward. Critics argue that the guidance directed colleges to effectively trample on the rights of students who are accused of rape.

The civil-rights office last month also issued interim guidance on Title IX that is less prescriptive and offers colleges more choices. For instance, administrators can now choose which standard of evidence to use when determining whether a student committed a sexual assault.

The interim guidance will remain in place until the department issues regulations on Title IX and sexual assault. Those regulations will go through a notice-and-comment process, which will allow the public and experts to weigh in. Ms. Jackson said on Thursday that there’s no set timeline for when regulations will emerge but that the process is underway.

About 25 percent of the more than 350 open investigations into colleges’ handling of sexual assault come from federal complaints filed during the Trump administration, Ms. Jackson said. That suggests that victims continue to feel comfortable coming forward, both to institutions and to the civil-rights office, she said, but also makes clear that "too many students are not yet experiencing school-level procedures that are prompt and fair."

Here’s what else Ms. Jackson had to say to lawmakers:

‘Pull the Framework Back’

As they discuss potential changes in Title IX policy, Ms. Jackson said she and others at the department are weighing two key questions: What should the federal government require colleges to do in their handling of sexual assault? And in what cases should campus administrators have more flexibility to design a student disciplinary process that works best for their institution?

The civil-rights office has yet to succeed, she said, in "creating a set of mandates" that "explain with clarity what the scope of a school’s response needs to be, and what kinds of basic fairness need to be incorporated into a school’s response" when it is disciplining a student who has committed a sexual assault.

The ultimate goal, she said, is "to clarify that we’re not asking schools to step in as courts of law."

"We’re hoping that we can pull the framework back to where it needs to be under Title IX: a school’s obligation to address and redress discrimination that’s occurring," she said.

‘False Accusations’

Rep. Jackie Speier, Democrat of California and a co-chair of the task force, asked the panel of witnesses whether they thought the often-cited statistic that 2 percent to 8 percent of sexual-assault reports are false was accurate. That figure, based on multiple studies, comes from the National Center for the Prosecution of Violence Against Women.

"It’s unproductive to speak in terms of false accusations," Ms. Jackson responded. Just because the available evidence didn’t prove that someone committed a sexual assault doesn’t mean that the allegation was false, she said.

"It’s so important, especially in a school context," she said, "that we recognize and stop creating the dichotomy that leads to actually discouragement of people coming forward if they fear that anytime there’s not sufficient evidence in a procedure to declare that person responsible, that somehow that means everybody’s going to assume that the person brought forward a false report."

Ms. Jackson’s remarks on Thursday stand in contrast to comments she made in July to The New York Times. In most campus sexual-assault cases, she said at the time, "the accusations — 90 percent of them — 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.’"

Ms. Speier also told Ms. Jackson that, in her view, the interim Title IX guidance creates "special rights for those who are accused." Ms. Jackson replied: "I don’t think that a presumption that you’re not going to be held responsible until you’re proven responsible in any way means that the system is set up unfairly against the person who came forward."

Which Standard Best Fits

One of the most contentious aspects of the debate over campus sexual assault has been which standard of evidence colleges should use when determining whether a student violated campus policies.

The Obama-era guidance told institutions they should use the "preponderance of evidence" standard, or more likely than not, which created consistency across campuses and their disciplinary processes. Critics have called for a higher standard, "clear and convincing" evidence. They say it would better protect the rights of accused students, especially in cases where alcohol or drugs are involved and the facts are often murky.

The interim guidance told colleges they could choose between "preponderance" and "clear and convincing."

The civil-rights office is trying to figure out whether it makes sense for the federal government to mandate a particular standard, Ms. Jackson said. Alternatively, she said, federal officials could "leave it as an option for schools to decide which standard best fits their community of students, and under what circumstances they feel most comfortable disciplining a student in their community."

Such flexibility could create a patchwork of policies across campuses, where a student reporting a sexual assault at one institution could end up with a different outcome than a student reporting a similar incident elsewhere. A department spokeswoman didn’t respond to a request for additional comment.

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.