A Tale of “Both Sides”: Betsy DeVos vs. Title IX

This article was written by Abby Leonard and Mia Arias Tsang. 

On September 22, the US Department of Education announced its intent to formally rescind Obama-era guidelines for how educational institutions should respond to claims of sexual assault. Secretary of Education Betsy DeVos foreshadowed this decision earlier in the month at an address to a preselected audience at George Mason University. During the address, DeVos said that “Washington has insisted that schools step into roles that go beyond the mission of these institutions,” and declared her plan to create policy that would reduce the responsibility of schools in regards to sexual assault cases. DeVos also claimed that the expanded role of institutions has become detrimental to the accused, who she refers to as “victims of a lack of due process.” However, according to Alyssa Peterson, a Policy and Advocacy Coordinator of Know Your IX and a student at Yale Law School, “the current approach [of the “Dear Colleague Letter”] is premised in the idea that Title IX is a civil rights statute so the rights of both parties need to be equal.”

Title IX was signed into law in 1972 with the intent of providing students in educational institutions with a federal safeguard against discrimination on the basis of sex:

“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.”

The first new policy step is to revoke the “Dear Colleague Letter,” which was published in 2011 under the Obama administration. This letter, addressed to educational universities in the United States receiving federal funding, reminded these institutions of their responsibility under Title IX “to take immediate and effective steps to respond to sexual violence.” Following the public announcement on Friday, the Department of Education also issued a Q&A on Campus Sexual Misconduct detailing the responsibilities educational institutions held in dealing with campus sexual misconduct.

In place of the letter, DeVos plans to enact a series of policies following what she calls a “both sides approach.” This new policy direction attempts to address supposed inequalities within the due process system of sexual misconduct investigations, which Devos claims disadvantages the accused. Key changes from the “Dear Colleague Letter” found in the published interim policy include the option for schools to use a higher standard of proof than the current standard, the option for colleges to provide mediation in sexual assault cases if both parties agree, greater access to evidence, and access to the identity of the victim before the accused is questioned.

This proposed system of a “both sides approach” under Betsy DeVos steps back from years of progress under the Obama administration and attempts to stigmatize victims once again. Peterson believes that this new policy reflects a basic misunderstanding of the intent of Title IX. “[DeVos] doesn’t quite understand the civil rights component,” she said. “She’s allowed schools to stack the deck against complainants by only allowing the accused student to appeal, allowing them to raise the standard to ‘clear and convincing,’ which would effectively weigh the accused student’s words more than the complainant, and then allowing things like direct cross examination.” Each of these changes does not create an equal playing field, but further burdens the complainant in campus sexual assault cases.

The validity of the assertion that the accused are disadvantaged under current Title IX implementation is also highly questionable. Betsy DeVos and her staff have yet to produce relevant data that would suggest the accused are disadvantaged. In fact, Peterson claims that “every example [DeVos] has cited is a violation of the earlier policies.” The response to these violations under Title IX should not be to abandon current policy, but rather to more strongly enforce it. As Peterson says, “She’s using these anecdotal examples to rip up years of progress.”

It is important to address the fact that many colleges today are not just institutions of higher learning: they are businesses that rely on a cycle of outside investors and the cost of tuition to stay running. Effectively dealing with cases of sexual misconduct first requires admitting that the school is having problems with sexual misconduct in the first place, so schools are worried that such an admittance will reflect badly on them and drive away investors and potential students. Left to their own devices, it’s unlikely that schools will take the steps necessary to protect survivors of sexual assault if it has any chance of tarnishing their image. There are already many examples of schools trying to sweep cases of sexual assault under the carpet: in 2013 a former Harvard professor was denied tenure after speaking out against treatment of assault and harassment victims; in 2014 a student at the American University admitted to raping a fellow student, but only received a year of probation while the victim was forced to sign a gag order preventing her from pursuing the case further; and in 2015 a Bard College student attempted to take her own life after her rapist was found to have violated the college’s sexual assault policy but was still allowed to remain at the school.

Yale University issued a statement regarding their response to the changes in Title IX policies following DeVos’ announcement. The university plans to maintain consistency with current policies and follow Connecticut law, which has already largely incorporated pivotal “Dear Colleague Letter” policies. Yale’s administration also plans to review the proposed policies under the Department of Education once they are released and submit comments regarding the policies in accordance with the notice and comment system. However, Peterson is unsure of whether or not Yale will hold to their assertion that they will consult students during this process. “It will be submitted on behalf of our community, so it’s really important that students get a role in actually writing and signing off on the contents of the comment rather than just being narrowly consulted throughout the process,” she says. This kind of transparency in student representation at Yale is pivotal to ensure a safe and supportive campus for all students.

Implementation of Title IX under the Obama administration was not perfect, but it certainly held schools more accountable for how they deal with sexual assault and provided an incentive for them to intervene. As to whether or not the “Dear Colleague Letter” guidelines favor the victim too much, overwhelming statistics make it very clear that this is not the case. Protecting sexual assault survivors should be a nonpartisan issue, but by withdrawing Title IX guidelines, DeVos and the Trump Administration have made it clear that their only real mission is to erase every part of Obama’s legacy, no matter if the impact was good or bad. Sexual assault survivors deserve more protection, not less.

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