Betsy DeVos has been making many headlines during her time as Secretary of Education, but she has been especially prominent in the news this September. This post examines, in particular, her recent moves to overhaul how Title IX rules are applied to campus sexual assault cases and plan to open a forum for how the administration should proceed.
What Exactly is Title IX?
Title IX is an amendment to the Higher Education Act of 1965 when it was reauthorized in 1972. Title IX states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Basically, universities can’t allocate funding to programs on the basis of sex. Historically, we have thought of Title IX as making sure women have access to the same programs and opportunities that men do, mostly with regard to sports. It has also been used to address sex discrimination in STEM subjects, as well as issues related to dorms and other clubs.
What Does Title IX Have to do with Sexual Assault?
Throughout the 21st century, it became apparent to White House administrations and to the country as a whole that rape is a significant problem on college campuses. With this realization, in 2011 President Obama wrote the “Dear Colleague” Letter to provide guidance on how schools must investigate and adjudicate accusations of sexual violence. The letter gives schools a “reminder” that though there were no new laws or new regulations being put forth, it is their duty to address and investigate sexual assault on campus fairly based on the protections put in place by Title IX. The letter also put forth proactive efforts schools can take to prevent sexual violence, provided examples of remedies and enforcement strategies and rights given to students under Title IX.
In 2014, a Question and Answer document was issued to give schools further clarification of what their responsibilities are to students when it comes to sexual assault. Also, the “Its On Us” campaign was launched in 2014. This campaign was meant as a sort of “rallying cry” to invite people to step up and realize that the solution with sexual assault begins with us, as humans. It lays out what is defined as sexual assault and explains to people their personal responsibility to do what they can, big or small, to prevent it. Together the new enforcement guidelines and related public awareness efforts tried to create a culture shift around sexual assault on campus, both making the crimes more unacceptable and also helping victims be better supported.
According to the ACLU, “sexual violence in schools and on campus is a pressing civil rights issue: when students suffer sexual assault and harassment, they are deprived of equal access to an education. Title IX is a powerful tool for students who want to combat sexual harassment and sexual assault, including rape, at school and on college campuses.”
I think we need to move on from the days where women were commonly told something like this after they reported sexual assaults: “think of it like a football game, think about what they could have done differently so you know for the future”. Obviously that is not an appropriate way to talk to someone who has experienced a sexual assault or talk about it in general. Clearly, a culture shift was needed, and the guidelines based on Title IX were a foundational step in the right direction.
So What is Happening with Title IX Now?
It is DeVos’s position that students accused of sexual assault are being treated unfairly by their schools and that untrained administrators are put in the position to act as judge and jury, which may have caused some students to be wrongfully punished. On September 7, 2017, DeVos announced that she would be making changes to the process that she plans to rescind the guidance in the Dear Colleague Letter and subsequent documents.
See some of DeVos’s comments here:
As you can see from these comments, DeVos very much frames her arguments in a “many sides” way, saying that we must consider both the accused and the accuser, equally. But Title IX already requires equal rights be given to all students, which means both victims and accused students are afforded equal rights.
Regarding the rights of the accused, people have voiced grievances with the new procedures for convicting someone of sexual assault on college campuses based only a “preponderance of the evidence”, which is a lower standard than what is required in the courts. This lower standard requires someone to prove it is more likely than not that the facts presented are true, instead of beyond a reasonable doubt as in a criminal case. However, although when students are convicted of sexual assault on campus they face being expelled, they can still choose to apply and enroll in a different school. In a criminal court, they would face criminal penalties. But it is true the after being accused and convicted of sexual assault within the college system, it may be harder for them to find a school after being kicked out and there is obvious damage to their reputation. So certainly the balance between the accuser and the accused in the existing procedures, making sure the rights and reputations of both sides are guarded while the proceeding is underway, is important. How to maintain that balance is crux of the argument.
Does DeVos Have a Valid Point?
Can it be argued that the balance is tipped towards the accuser in the current system? No. I don’t think the facts don’t line up with what the Administration has been saying. Let’s start with the leader of the Office for Civil Rights, Candice Jackson, and her claims in a recent interview with the New York Times that 90% of campus sexual assault allegations “fall into the category of ‘we were both drunk’ or ‘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.’” That is wildly wrong. A 2010 study found that between 2% to 8% of campus rape reports are false. Someone who honestly thinks that 90% of sexual assaults fall under these circumstances is not someone who understands the grave importance of the civil rights they are supposed to be protecting.
Second, let’s look at DeVos statement from above, that people within the university justice system do not have forensic or legal training yet are “playing cop, prosecutor and judge”. But consider the immense costs of forensic procedures in the formal legal system. Insisting on such a process will increase the pressure on universities to find ways to silence victims because dealing with accusations will be so difficult and costly. As discussed above, there is a big difference between a university conviction and a legal one. Losing access to education from a particular school in a Title IX proceeding is much different than losing your liberty in a criminal trial, so it makes sense that criminal defendants are judged by a different standard. “Preponderance of the evidence” is what has always been the applicable standard for Title IX and other civil rights cases, and it makes sense for these claims too.
Also, DeVos has a history falsely equating the impact of being assaulted to that of being accused of an assault. The trauma associated with an assault can not only last a lifetime, but in the short term can severely impact the student’s mental state, grades, and participation in school and activities. Having their attacker expelled after being convicted of a sexual assault on a college campus helps students who experience sexual assault to work through their trauma without having to constantly deal with their assailant. The damage to one’s reputation of being falsely accused pales in comparison with the trauma of sexual assault.
Finally, statistically, according to Stanford, the possibility of being falsely accused of rape (2%) is the same as any other violent crime. Yet people continue to claim allegations are false far more frequently for rape than for other crimes. For no good reason, people are much more likely to disbelieve a woman if she says she was raped than if she says she was robbed. Claiming the accused need more protection implies that there is a significant problem with false allegations when there isn’t. Certainly, the possibility of false accusations must be considered, which is why there are procedural protections for the accused in place as part of the existing process. But the claim additional protections are needed is simply not supported by the facts.
The Bills
There are a few bills that have been proposed nationally and in certain states that address some of the issues covered by this topic.
US S 590 – the Campus Accountability and Safety Act failed, but aimed to protect students and boost accountability and transparency at colleges and universities by incorporating input from survivors, students, colleges and universities, law enforcement and advocates. It would have done the following:
- Establish new campus resources and support services for student survivors
- Ensure that college and university staff meet minimum training standards to address sexual assault cases
- Create historic transparency requirements to provide students, parents, and officials with an accurate picture of the problem, and of how campuses are addressing it
- Require a uniform student disciplinary process across campuses, and coordination with law enforcement
- Incentivize colleges and universities to address the problem by establishing enforceable Title IX penalties and stiffer penalties for Clery Act violations
CA S967 – Yes Means Yes – California passed legislation in order to have a clear definition of when people agree to sex by going further than the common “no means no” standard by stating clear affirmative consent is required. It also aims to improve how universities handle rape and sexual assault accusations and clarify the standards, requiring an “affirmative consent” and stating that consent can’t be given if someone is asleep or incapacitated by drugs or alcohol.
The law states “Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”
NY S5965 – “enough is enough” – This bill aims to encourage victims and witnesses of sexual misconduct to report the incidents. It also sets forth uniform policy and reporting requirements for all higher education institutions within the state.
US HR11 – Violence Against Women Reauthorization Act of 2013 – the Campus Sexual Violence Elimination (Campus SaVE) Act was part of this Act. Rather than recommending that colleges develop educational programming, the law explicitly requires all schools to offer “primary prevention and awareness programs” that reduce the risk of sexual assault. The idea behind this is that all students and faculty members should be held accountable for the elimination of sexual violence on campus.
US HR812 – Campus Sexual Violence Elimination Act of 2013- Amends title IV (Student Assistance) of the Higher Education Act of 1965 to require institutions of higher education to encourage the accurate, prompt reporting of all crimes to campus police and appropriate law enforcement agencies when crime victims elect not to, or are unable to, report the crimes.
US S128 – A bill to amend the Higher Education Act of 1965 to improve education and prevention related to campus sexual violence, domestic violence, dating violence, and stalking.
Safe Campus Act of 2015 and Fair Campus Act were introduced in Congress in response to concerns among some lawyers and legislators that the current approach to collegiate sexual-assault adjudication fails to provide defendants adequate due process.
My Concluding Thoughts
We need laws and statutes like many of the ones discussed above because people do not want to look this issue square in the face. These laws that are meant to protect certain groups’ civil rights who were otherwise struggling to exercise them; why would we take this protection away? Instead, I think that the guidance provided in the Dear Colleague Letter should actually be strengthened: affirmative verbal consent should be required to provide consent, not just implied consent until you hear no.
This CNN article states “with federal pressure to be tough on sexual assault adding strong incentives to err on the side of the accuser”, which misses some of the huge issues surrounding sexual assaults. Schools have not been tough on sexual assault which has fueled the permissive culture surrounding it on college campuses. “Accusers” go through so much when reporting sexual assault and the numbers show that they are overwhelming genuine reports. If incentives and policies err on the side of 98% of the people, I would say that is fair. There are already adequate protections put in place for the accused.
I also think that the sexual culture has is part of the problem and needs to be dealt with. People should not be having sex with people they do not know when they are under the influence of alcohol or any other type of mental inhibitor. If you are drunk, neither of you can consent. It is on us to teach future generations to not participate in this “hookup” culture because it can easily lead to unwanted sexual encounters that people would not participate in if they were sober. The best way to protect both victims and the accused is to help people really understand and value the importance of affirmative consent. This shift in attitude will help schools reduce the incidence of campus rape and put the false narratives of false accusations to rest.
If you are interested in learning more about this issue, receiving updates on what is currently happening or have any further questions, head over to End Rape on Campus – a survivor advocacy organization dedicated to ending sexual violence through survivor support, public education, and policy.
Photo by Markus Spiske on Unsplash
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