Federal Title IX Review Warrants Serious Concern
On Friday, Sept. 22, Betsy DeVos, the Secretary of the Department of Education, shifted Title IX, a set of laws designed to ensure gender and sexual orientation freedoms for college campuses across America. In an effort to provide more due process to those accused of sexual assault, universities will no longer be required to use a preponderance of the evidence standard -- which traditionally requires 51% confidence that the accused are guilty. In the wake of DeVos’ announcement, colleges are now free to use a clear and convincing standard -- in which the deciding body must be 75% confident that the accused committed the assault. The Department of Education justifies the policy change with concerns over the due process rights of those accused of sexual assault -- a point that should be addressed in improving Title IX. However, the context in which this process is transpiring, namely President Trump’s history of sexual assault and DeVos’ inexperience, raises serious concerns about the true implications of this administration.
Sexual assault, of course, is a major issue, particularly on college campuses. Numerous reports, like the latest study from RAINN, the nation's largest anti-sexual violence organization, confirm this to be true, as the study found that 23.1% of female and 5.4% of male college students experience at least once incident of rape or sexual assault during their undergraduate years. What is even more troubling, however, is that many instances of rape or sexual assault are kept secret. In a 2015 poll by The Washington Post, for instance, just 12% of sexual assault victims said they disclosed the incident to local police or college authorities. Hesitation to seek help occurs for many reasons including fear of not being taken seriously, of victim-blaming, and safety concerns. For the investigations that are brought to light, failure to justly punish a perpetrator can have serious consequences. A recent article by The New York Times concerning repeat rape offenders cited a study in which 25% of rape and/or sexual assault offenders were found to engage in these behaviors more than once.
In an effort to combat these significant issues, Title IX standards require educational institutions to police situations involving sexual violence in which a person’s safety or well-being may be at risk. The enforcement of Title IX, however, has been heavily criticized in recent years after President Obama’s administration required schools to more aggressively enforce these standards at the risk of losing federal funding. Many colleges, Skidmore included, now treat sexual assault cases as civic rather than a criminal case, meaning they can adopt a lower evidence threshold in order to punish accused perpetrators (usually 50% + 1), whereas in a criminal case, the jury needs to prove “beyond a reasonable doubt” that an accused party is guilty. In extremely rare cases, this could potentially lead to unjust rulings, so the idea that Title IX’s current structure could be improved by allowing greater due process for the accused is not overly problematic. It also may work to prevent cases similar to the Brock Turner scandal at Stanford University – where the student was released on the basis of being a talented athlete despite evidence that clearly convicted him.
Although sexual assault is an undeniable issue, and Title IX is not perfect, there is little reason to believe the current administration is equipped to improve it. Not only did video recordings surface of President Trump boasting about “grabbing women by the pussy,” but Trump also adamantly denied claims of sexual assault, chalking the incident up to ‘locker room talk.’ As for DeVos, when asked about her intentions to protect students in private schools from discrimination based on their religious affiliations or LGBTQ identities, cases which have not been clearly outlined by law, DeVos repeatedly stated she would defer to federal law. DeVos’ inability to recognize that even federal laws designed to support equality, either due to lack of clarity or because of prejudice in application, negatively affect marginalized groups points to her legislative naiveté. Her lack of experience shaping education policy, let alone any policy, raises serious questions about her ability to add the necessary level of nuance required to improve Title IX.
Although the temporary shift in evidentiary standards will only be in effect until the Department of Education issues new Title IX regulations after a comment and deliberation period, it is a concern that an inexperienced Secretary and an offensive administration will erase progress in sexual assault policy.