Opinion: Title IX reforms are contentious, but necessary
Education Secretary Betsy DeVos has proposed major changes to federal enforcement of Title IX, the statute that deals with gender-based discrimination and sexual misconduct in schools.
The changes would restore due process protections for students accused of sexual assault, and thus have earned the ire of victims’ advocacy groups, Democratic politicians, and even the American Civil Liberties Union, which usually takes the pro due process position.
These groups are concerned that any rebalancing of the scales of justice will make victims of sexual assault less likely to report their rapists to campus authorities. I sympathize with this concern: While the size and scope of the campus sexual assault problem is a subject of legitimate debate, the only acceptable number of rapes is zero, and those who have experienced abuse should feel comfortable and supported in coming forward.
Unfortunately, the Obama administration’s efforts to address the problem were misguided at best, and often at odds with basic principles of fairness. DeVos’ reforms are contentious but necessary; what came before them just wasn’t working.
In 2011, the Obama-era Office for Civil Rights — a sub agency within the Education Department that monitors Title IX compliance — published a “dear colleague” letter outlining new requirements for campus sexual misconduct adjudication. OCR took the position that schools were obligated to investigate any unwelcome conduct of a sexual nature, or risk loss of federal funding. The government further stipulated that administrators must use a preponderance-of-the-evidence standard when deciding a sexual misconduct case, and that cross-examination — one of the most important tools for arriving at the truth of a dispute — should be discouraged on grounds that it could re-traumatize victims.
Title IX is just one sentence long, and reads: “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.” It’s quite a stretch to read this as a requirement for schools to hold campus rape trials, let alone structure them in a manner that is fundamentally unfair to the accused. Nevertheless, the Obama-era guidance revolutionized how schools handle sexual assault allegations.
The guidance also produced an endless stream of lawsuits from students — usually male, often athletes of color — who were accused of sexual misconduct and expelled from campus. Many argued that the universities had treated them unfairly, violating their rights at the behest of the government.
A Title IX trial is not the same thing as a criminal court proceeding: Universities don’t have the power to send people to jail. Still, it’s reasonable to expect them to be fair to both sides. Sadly, this has seldom been the case.
I’ve read the investigative reports, evidence, files, lawsuits and legal documents relating to more than a hundred Title IX cases, and many of them were simply farcical. A few examples: a Colorado State University Pueblo student was expelled for sexually assaulting his girlfriend, even though she had never complained and denied he did anything wrong when asked; a University of California-Davis student spent $12,000 defending himself against an accusation of brief nonconsensual touching, even though it was obvious that the accuser had initiated the encounter; a Michigan State University graduate forfeited his shot to play for the NFL after he belatedly learning his accuser had appealed the initial not-guilty finding — he was tried a second time, without his knowledge, and lost.
DeVos’ reforms will make these travesties of justice less likely. For one thing, they require cross-examination, which means accused students will be better able to defend themselves. Contrary to what many activists claimed, the new rules do not force sexual assault survivors to face their attackers; the rules specify that attorneys or representatives of the accused and the accuser should do the questioning.
DeVos’ reforms also use a more reasonable definition of sexual misconduct — it’s no longer all unwanted conduct — while eliminating the single-investigator model, an increasingly popular form of Title IX adjudication in which a sole administrator was charged with investigating the case, gathering evidence, and determining guilt or innocence.
I understand why casual observers might see this as an example of the Trump administration treating rape victims callously — the president himself has been accused of sexual misconduct by at least 19 women, after all. But DeVos’ reforms aren’t an attack on women — they’re an acknowledgement that the existing Title IX guidelines were legally dubious, impractical and unfair. She’s taken a step in a better direction.
Robby Soave is an associate editor at Reason.com. He wrote this for InsideSources.com.