The implementation of proper Title IX protocols has historically been a rocky road, but the new rules published this week by US Education Secretary, Betsy DeVos, sets us back dramatically in terms of progress. Title IX is the clause which applies to both state and local educational institutions that receive federal financial assistance. Its intention is to protect students from discrimination on the basis of sex, including the handling of any sexual assault cases that fall into the school’s jurisdiction. Now, under the rewritten proposal, which was released on May 6th, the way that colleges respond to sexual cases will be inherently favorable to the accused, leaving survivors in the dust yet again.
In 2011, the Obama administration released the “Dear Colleague” letter, which was their guidance on how schools should comply with Title IX. This suggested mainly that schools use a “preponderance of the evidence” burden of proof standard when deciding sexual harassment cases, which means that the accuser is responsible to provide evidence that indicates the high likelihood of the assault (as opposed to the much harder to prove “clear and convincing” evidence standard, which puts much weight on the accuser to show that the accused had committed misconduct).
This letter was a hard-won acknowledgment of the severity of sexual misconduct in a campus setting and brought upon a more serious concern for sexual assault at the federal level. But we weren’t out of the woods yet.
Men’s rights groups and other sympathizers for accused students argue that the main suggestions of the “Dear Colleague” letter denied the accused due process. They claim that victims of sexual assault and violence could be lying and are therefore the real perpetrators. What makes the opinions of these groups even more terrible is that they commonly are allied with people of importance and who are in high positions of power.
To be clear, statistics show that among undergraduate students, “23.1% of females and 5.4% of males experience rape or sexual assault through physical force, violence, or incapacitation.” Of those survivors, more than 90% of sexual assault victims on college campuses do not report the assault. The notion that a large number of claims and complaints are false is highly skeptical, given that the National Sexual Violence Resource Center says that the prevalence of false reporting on sexual assault is between 2% and 10%. Which, the resource center also notes, is a conflated number due to inconsistencies in definitions and protocols.
When Betsy DeVos assumed the position of Education Secretary in 2017 and held meetings to discuss Title IX, she was not committed at all to maintaining the protections from the “Dear Colleague” letter. In fact, she scoffed at them. Then, in 2018, the Trump administration unofficially announced that the Education Department would be pulling back from those Obama-era guidelines. DeVos praised the new rules which manipulate what is at the core of Title IX. She was convinced that the guidelines from the previous administration were a civil rights violation and favored false accusers, because, according to her, people often make false claims for popularity or to ruin the life of someone out of dislike, utterly disregarding the terror, trauma, or injustice that survivors endure.
Time and time again, this government has proved that it is uninterested in protecting and supporting vulnerable student survivors, or survivors of any kind. These regulations ignore psychology and fact, and contrary to conservative belief, survivors are more likely to feel shame or embarrassment after an assault, and are not immediately emboldened to report the incident.
DeVos’ proposal received much pushback from survivors and advocacy groups like the #MeToo movement. These new rules will land unfairly and unjustly in favor of the accused to protect the institution from liability and would dissuade victims from coming forward with their accusations out of fear.
Furthermore, the final official version that was released on May 6th came out at a time in which schools across the country are closed due to the coronavirus pandemic. As a result of these widespread closures, universities don’t have any preparation time before the rule takes effect. It will be extremely difficult for all colleges to implement this rule without face-to-face contact and for students to express concern or find the necessary resources to understand and cope with these new developments. DeVos’ theory is that colleges should have seen this coming, given the original announcement in 2018. If restrictions on face-to-face contact continue, schools would be expected to conduct hearings and investigations remotely, which allows for a lot of bias and ignorance.
These new regulations go into immediate effect on August 14 and are broadly un-different from the 2018 proposal. They effectively allow perpetrators and schools to flee from responsibility. At the same time, the rules also subject survivors to additional trauma and therefore make campuses feel unsafe for most women.
To put it frankly, the regulations are incredibly silencing.
For one, the legal definition that constituted harassment during the Obama-era was an “unwelcome conduct of a sexual nature.” DeVos’ is much more narrow, however, citing that harassment is an “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” As if the literal assault wasn’t restricting enough for victims.
DeVos is headstrong in her belief that her proposal restores balance and fairness in a system that is skewed in favor of the accusers. Apparently, to those who appear to only be able to muster up some empathy for the young, usually white, college-age boys who feel so entitled that they go around harassing women and impede years of trauma on them, her method will be more transparent.
The new guidelines require colleges to respond to allegations in a more formal, court-like, setting where the accused is able to cross-examine the accuser. In addition, it is up to the discretion of the school to decide which burden of proof to rely on when judging complaints.
It gets even worse. The rule also makes sure that institutions are only legally required to investigate complaints if they are made to the proper authorities. Plus, much of the rule is left up to the interpretation of the school. So, any incident that takes place at a Greek-life or other school-sponsored event that happens to be off-campus would be subject to Title IX proceedings, but incidents that take place off-campus between two students on their own would not be considered for Title IX procedures.
The new rules, in their very nature, ignore the emotional severity of a person coming forward with an allegation and refuse to hold the accused accountable for their actions. This is a regurgitation of power back into those who have always had it, and therefore works to reverse any progress towards equity that has already been made.