This past fall, Department of Education Secretary Betsy DeVos’s publicly released changes to Title IX and Obama-era policies pertaining to sexual misconduct on publicly funded campuses. The changes included limiting the scope of colleges’ responsibility and requiring cross-examination of those involved. Two Warrior writers argue the merits of each side.
Pro: DeVos Safeguards Rights of the Accused
by Russell Irons ‘19
Education Secretary Betsy DeVos’s changes to Obama-era policies are a step in the right direction for better ensuring that a more fair investigation goes into cases relating to sexual misconduct on college campuses. Survivors of sexual assault must be taken seriously, but the principle that one’s innocent until proven guilty must be maintained.
Title IX of the Education Amendments of 1972 eliminates discrimination by sex in education, but was first created to cover sports. Title IX now encompasses much more, including sexual harassment. Under Obama, Title IX’s term for what constituted as sexual harassment was extremely broad; any unwelcome conduct of sexual nature was classed as sexual harassment.
The new guidelines define sexual harassment as any unwelcome sexual conduct; or unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity. While the word ‘objectively’ is always difficult to define, the new standard is more specific and tougher to misapply.
Under Obama-era policies, one of the major flaws was that a case could be investigated and deliberated upon with little concrete evidence. There had to be preponderance of evidence in order for the case to proceed. Preponderance of evidence is a low standard based on probable accuracy or truth to information. This low bar was easily surmountable. DeVos’s new policy still offers the option of preponderance of evidence in addition to higher standards for use in investigating. Another new provision is that colleges can only investigate what happens on school grounds, so any students who are assaulted or harassed in places like off-campus housing and bars would not fall under their school’s jurisdiction and would instead have to go to the police. Fraternities and sororities are classed as school groups and are considered on school grounds. The new policy sets a clearer standard of what locations fall under a school’s jurisdiction.
Title IX cases are handled by Title IX investigators at the college, and not the police. Under the Obama-era policies, colleges use a single adjudicator model when investigating cases of sexual misconduct. The single adjudicator model is one of three investigation models outlined
in Title IX. Requirements by the Office of Civil Rights to conduct a “timely investigation” and the amount of staff required to hold a panel necessary for the other methods make it easier to go with the single investigator model. With the threat of losing federal funding dangled over them if they did not deliberate quickly, colleges took the easiest and most expedient way to handle cases. The new guidelines establish due process, and the cross-examination of both the accuser and the accused. A good deal of the contention around the new policies stems from the accuser having to see or even talk to their accused, since there is no denying it is traumatic for the accuser. However, the option is open to substitute for attorneys or other representatives.
Allegations can cause the expulsion or suspension of students. DeVos’s new policies reflect a desire to both take these allegations seriously and to investigate as fully as possible to help limit miscarriages of justice. While the new policies are not perfect, they are a step in the right direction towards a more just system.
Con: New Policies Send the Wrong Message
by Sophia Wooden ‘20
Sexual misconduct can’t be defined as one specific act. The intention of the Obama administration’s changes to Title IX policies was to not rigidly define sexual harassment or assault for the victim, because it would be presumptuous to talk about something one has not personally experienced. Instead, the Obama administration gave a general statement of harassment as “unwelcome conduct of sexual nature.”
The proposal by current Education Secretary Betsy DeVos to change that definition to “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” is absurd because how is a victim or the college supposed to determine what rises to the level of “severe” or “pervasive?”
If a student on more than one occasion says sexual comments to another student in class, will that student be held accountable for harassment? Possibly not, if the school conveniently finds that the harassment does not deny access for the victim.
Schools should be encouraging students to come forward when they are sexually harassed and assaulted. However, the new policies by DeVos would make colleges less responsible for addressing instances of sexual assault that occur off-campus.
In addition, the new policy requires student victims to complete and sign a formal document before the school will even begin an investigation. This new change would possibly cause young women to feel that they can not come forward with their issues.
Not only is this dangerous for victims, but the policy also could give these perpetrators the idea that “As long as we don’t rape them, we won’t get prosecuted.” Do we really want students to feel like as though they cannot confide to their school when they feel unsafe?
Furthermore, the new policies seem more concerned about the rights of the accused. When new Supreme Court Justice Brett Kavanaugh faced multiple accusations of sexual assault during the time he attended high school and college, President Trump said that it’s “a very scary time for young men in America.” Responding to Trump’s misplaced concerns, the organization
NARAL Pro-Choice America tweeted: “It’s a very scary time for young women in America, you know, because 1 in 6 of us have been the victim of rape or attempted rape.” And yet the DeVos policies seem designed to worry about and protect the accused perpetrator of sexual assault. The accused should not be guaranteed the right to cross-examine the individual that bravely came forward as a victim of sexual misconduct. Their experience alone was traumatizing; victims don’t need to be challenged by the very person that traumatized them.
Think about it. Think about how difficult it is for a victim of sexual assault to come forward and report what has happened. The new policies send the wrong message that maybe victims should keep things to themselves.
Coming forward is very unappealing and insulting to victims when they suspect that their colleges do not want to act on their behalf. Most victims fear the possible consequences they may face. Every victim of sexual harassment or assault on college campuses should be heard, not silenced.