Sara Fullerton, Staff Writer
Last September, U.S. Secretary of Education Betsy DeVos announced the withdrawal of 2011 and 2014 Title IX guidances put forth by the Department of Education’s Office of Civil Rights (OCR). In the past week, there have been reports of the guidances DeVos will put in their place. However, these changes have not been officially released and Liz Hill, a spokeswoman for the Education Department, told the New York Times that any reports received so far are “premature and speculative.”
Title IX, originally established in 1972, states that “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.”
In 2011, the Obama administration released the “Dear Colleague” letter, in which the federal government established specific protocols for any university receiving federal funding to comply with Title IX in cases of sexual violence. The documents defined sexual violence as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability.”
Title IX processes allow survivors to have their cases investigated without necessarily leading to a hearing or being attached to a criminal justice process. They also establish interim protections for survivors, such as housing relocation or restricted contact from the assailant.
The 2011 and 2014 guidances called for a “preponderance of evidence” in cases, meaning that verdicts will be decided based on convincing evidence, not the amount of evidence. They also asked for an expedited investigation process, and advised against cross-examination or mediation that would put survivor and respondent in prolonged contact, which could be traumatizing for the survivor.
A “fair trial” is unrealistic when considering both neurobiological and emotional factors. Most legal processes demand that the survivor report and have evidence collected immediately after the traumatic incident. Following sexual violence, many experience overwhelming self-blame and disorientation that might keep them from immediately reporting.
Since DeVos revoked the Obama administration’s guidances in Sept. 2017, she has advised universities to refer back to guidances issued in 2001 and 2006. DeVos says the 2001 and 2006 documents are superior to the Obama administration’s guidances based on their inclusion of public input, but reliance on public discourse from more than 15 years ago is dangerous. Public conversation surrounding sexual assault has evolved tremendously since 2001, moving from near-silence around an implicit rape culture to only recently gaining mainstream visibility and awareness.
The new guidances are intended to reduce universities’ liability, and now only incidents that take place physically on campus or at campus-sponsored events are to be included in Title IX procedures. They also focus on the accused students’ rights to a fair trial and protections against false convictions. The 2017 guidance limits what is defined as sexual violence to its most extreme forms, saying, “When sexual misconduct is so severe, persistent, or pervasive as to deny or limit a student’s ability to participate in or benefit from the school’s programs or activities, a hostile environment exists and the school must respond.” Whereas the 2011 and 2014 guidances outlined the numerous forms of violence that would be included in their definition, the new guidances lack a clear description. Leaving this up for interpretation further diminishes universities’ accountability to support survivors.
Candice Jackson, the Secretary for Civil Rights whose name was signed on the 2017 Dear Colleague letter, said in an interview with the New York Times last July that “90 percent” of campus-rape allegations “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.'” Jackson later apologized for what she called a “flippant” remark, but her statement provides an unsettling insight into how the Trump administration views the legitimacy, seriousness and pervasiveness of sexual violence.
A 2014 report by the Department of Justice found U.S. women aged 18-24 to be at least three times more likely to face sexual violence than the national average for women of all ages. The same study found that only about 20 percent of female student survivors report to law enforcement. False accusations of sexual assault are the exception. The National Sexual Violence Resource Center says its review of the research places the frequency of false reporting at “between two and ten percent,” which is the same rate as false reports for any other crime.
Policy affects discourse, and this repeal of 2011 and 2014 Title IX measures has power to reshape how sexual assault cases are perceived, both on college campuses and throughout the nation. The Obama administration’s guidances were informed by history, acknowledging and working against a climate that has shamed and disempowered survivors. The guidances were informed by an understanding of the intersectionality of oppression within sexual violence.
Sexual assault is repeatedly acted upon vulnerable individuals, whether based on their perceived gender, ability, age, race and other factors that systematically hinder their ability to be heard. Given this, a system that offers protections to survivor and respondent “equally” is fundamentally flawed.