The U.S. Department of Education, under Education Secretary Betsy Devos, is rolling back Obama-era rules to the nationwide Title IX program that will make it even harder for women to report incidents of rape and sexual assault to campus supervisors.
“Title IX” is a federal civil rights law passed as a component of several amendments in 1972. It was designed as a follow-up to the Civil Rights Act of 1964, but where the 1964 Act worked to end discrimination based on race, color, religion, sex or national origin in the areas of employment, Title IX prohibits sex discrimination against persons employed at educational institutions. The rules were later expanded to provide a blueprint for how colleges and universities address sexual assault or rape and harassment complaints between students.
Title IX determines how fairly victims are treated in the “court” of school administration when it tackles campus-related rape or assault allegations. Title IX is a civil law, however. In criminal justice proceedings, the worst outcome for suspects found guilty of rape or sexual assault is probably prison, annual registration as a sex-offender and/or the loss of their civil liberties. A Title IX complaint, however, is a campus grievance. The worst outcome a confirmed perpetrator of sexual assault can get from the school is the threat of being expelled. That’s hardly anything, honestly; they may as well just get caught cheating, although the victim can still lodge a more serious complaint with local law enforcement.
Before Devos stepped in, the real strength of a Title IX grievance was its unit of measurement for determining guilt. The Title IX rules under the Obama administration allowed campus investigations to use the less rigorous “preponderance of evidence” standard in determining whether a rape or assault took place. Many campus Title IX coordinators describe this standard as a kind of “50 percent plus 1” confidence that a crime took place.
Here’s an example for you: Let’s say a self-proclaimed sexual assault victim tells school counselors a credible story about her sexual assault, but she has no other evidence to substantiate it. There is no security footage, text reports or physical witnesses. When confronted by school investigators, the suspect then responds with a story that’s not completely unbelievable, but also not really as credible.
Victim: I was drunk in his dorm and he raped me. I didn’t want sex, but I was too drunk/drugged/sleepy to stop him.
Suspect: We had sex, but she wanted it. Plus, she’s kind of a skank.
In that scenario, counselors will often consider that a victim is unleashing a whole dumpster of inconvenience and criticism upon herself when she runs to authorities, and that it really, really, really isn’t in her best interest to parade her sex life before the whole campus, unless something might have actually happened.
Under the “preponderance of evidence” standard, the victim might be able to prevail, even without hard evidence. But that’s not the way it’s done in a courtroom where the jury uses a more strict, “clear and convincing” evidence standard. Under “clear and convincing,” whatever deliberative body is mulling the evidence—be it a bonafide jury or a triumvirate of university counselors—must generally be about 70- or 80-percent convinced the suspect is a thirsty fink or sex pest. In that scenario, the alleged victim is usually wasting her time with a complaint unless she’s got photo evidence or multiple witnesses to the crime.
But shifting investigations into more of a courtroom format is exactly what Devos and the U.S. Education Departments is trying to do with their Title IX rule changes, according to critics.
“Under proposed § 106.45(b)(1)(iv), schools would be required to presume that the reported harassment did not occur, which would ensure partiality to the respondent,” according to the National Women’s Law Center (NWLC). “This presumption would … exacerbate the rape myth upon which many of the proposed rules are based—namely, the myth that women and girls often lie about sexual assault.”
The organization goes on to complain that the rule changes can be read as requiring schools to dismiss reports of off-campus harassment, as well. This is kind of a big issue, the organization says, because fraternity and sorority houses are where a lot of sexual assaults actually happen.
“And (the rule changes) would certainly require dismissal of complaints of harassment that occurred online, at house parties, or elsewhere,” NWLC added.
Aside from a stricter standard of evidence and a “presumption of innocence” for the named harasser, the proposed rules “would (also) require schools to hold mini-trials for each formal complaint of sexual harassment or assault,” according to NWCL and NAACP President Derrick Johnson.
“Under the rules, colleges would be required to conduct live hearings, complete with cross-examination. … But what those mini-trials lack are the careful protections for victims that real courts have created, like rules that prohibit irrelevant evidence meant only to victim-blame and slut-shame. The rules make clear that if the schools follow these procedures, they will not be found liable for violating Title IX, even if those schools mishandle complaints, fail to provide effective supports to survivors, allow questioning that is inappropriate and could be triggering, and wrongly determine that the reported assault or harassment didn’t occur.”
In essence, the federal government isn’t going to hold schools accountable if they let Biff call Abigail or Tameka a whore during his defense. This isn’t really a surprise, considering Devos actually admitted she’s proposing the changes specifically to protect perpetrators:
“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault (against them),” DeVos said in a statement.
Her boss, president Donald Trump, agreed, of course. Trump, who is himself the named suspect in at least 17 accusations of rape or sexual assault, described the new school regulations as “even-handed justice” with “a transparent grievance process that treats the accused as innocent until proven guilty.”
The new rules are putting college campuses in a bind because campuses naturally want to keep their reported incidents of assault and harassment down, and these new rules will certainly make that happen by discouraging victims to file complaints. On the other hand, Title IX campus coordinators blow their university’s image as a “safe place” for students by wholeheartedly embracing the anti-victim rule changes.
Keith Cobbs, director of Title IX and Ethics and Compliance Programs for Morehouse College, in Atlanta, told Lighthouse there really is no wiggle room in accepting the rule changes. Rejecting them amounts to an across-the-board rejection of Title IX rules, which were created for the purpose of protecting women—so that’s not happening.
Leslie T. Annexstein, Title IX director for Howard University, meanwhile, says Howard University’s current Title IX Policy already complies with the Title IX statute and that its “current policy and implementation practices are (already) fair, thorough and sensitive to all individuals who may be involved in a (sexual assault) matter.”
Annexstein’s statement carries the implication, however, that they were fine with the rules like they already were, but she says now the school will “likely need to modify our current policy in order to implement these new regulations and ensure our University’s compliance,” like any other educational institution that receives funding from the federal government.
This is going to be a dangerous situation for young Black women leaving home and running off to an unfamiliar campus world containing hundreds of potentially-dangerous strangers.
Fatima Goss Graves, president and CEO of NWLC, said DeVos and the Trump Administration are “dead set on making schools more dangerous for everyone,” and pledged to take legal steps to prevent the rule change.
“[I]f this rule goes into effect, survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting assault,” Goss Graves stated. “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug. And we won’t let DeVos succeed in requiring schools to be complicit in harassment, turning Title IX from a law that protects all students into a law that protects abusers and harassers. We will fight this unlawful rule in the courts.”
For one of the ways this has played out on a campus, see our previously reported story Title IX … Works Just Like They Planned.
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