Secretary of Education DeVos Proposes Drastic Changes to Title IX

June 23, 2020 12:46 pm By

In early May, Education Secretary Betsy DeVos announced new changes to Title IX, a federal civil rights law that protects students from discrimination based on their sex. The protection applies to all schools that receive federal funding which is a majority. As recent as 2017, guidelines have been put in place to help schools address the issue of campus sexual violence. Schools cannot retaliate against those who have filed complaints or discourage students from continuing their education. Schools also must protect students’ right to safety by ensuring that they don’t have to share their campus spaces with their accused abusers.

The changes proposed by DeVos give new protections to those who have been accused of sexual crimes on college campuses. The changes will require schools to hold live hearings at which the accused parties will be given the chance to question evidence and cross-examine those accusing them. The definition of sexual misconduct will also be more refined and narrowed by the changes, meaning if schools don’t believe the allegations meet the new standards, they can simply dismiss the complaint. The schools reach will extend to covering incidents that take place during school programs and activities, meaning fraternities and sorority houses will now be under the schools reporting umbrella. However, any incidents that occur during study abroad programs or those that take place in off-campus housing will not be the school’s responsibility.

Further adjustments make the level of evidence needed to be that of a higher caliber than previously. During the Obama era, college officials were to use the “preponderance of evidence” standard, meaning decisions were made on the most convincing evidence available. The recent changes will let colleges use the “clear and convincing” standard, which requires a higher burden of proof than “preponderance of evidence”. In cases involving sexual assault and violence, evidence can often be portrayed in multiple facets, such as evidence of bodily fluids being present due to a consensual encounter.

There very rarely is any way to definitively prove whether consent was given or not in a situation thus making cases with sexual components extremely difficult to prove. Cases brought to the attention of the school by former students would also not fall under the school’s jurisdiction anymore. This is troubling as many high profile cases in recent years, including the Penn State and Ohio State scandals, have included claims from past student-athletes. It can take time for survivors to process what has happened to them and may come forward with their stories years later. By denying alumni this right, it greatly hinders the responsibility of the universities to protect their former students.

The Department of Education is hoping the changes will create a more fair system. DeVos has stated that students who have been accused and removed from campus are losing access to their education due to schools inadequately responding to complaints. Backers of the changes say that they will keep schools from engaging in the back and forth battle of wanting to protect survivors while also not alienating the accused. They hope to bring due process back into Title IX legislation.

Those opposed to the alterations have stated their concern that these changes will further keep victims from coming forward. The National Sexual Violence Resource Center states that one in five women and one in sixteen men are sexually assaulted while attending college. Live questioning has the potential to retraumatize victims, a reason many survivors don’t come forward at all. According to statistics done by RAINN, the Rape, Abuse and Incest National Network, college women are three times as likely to be sexually assaulted than the average woman and are often less likely to report their assaults.

In fact, statistics show only 20% of female student victims report sexual violence incidents to authorities. That percentage is slightly higher among female non-students at 32%. The president and CEO of the National Women’s Law Center, Fatima Goss Graves, has stated to CNN that, “if 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.”.

With the new regulations, there is a lack of trauma-informed investigative procedures that are used to take into account the psychological impact that can happen to a survivor during an investigation. Sarah Nesbitt, policy and advocacy organizer for Know Your Title IX, has expressed concern about the impact live questioning can have on survivors. She has stated, “There’s this misconception that trauma-informed means unfair when trauma-informed processes are critical to fairness.”

With the live hearing process, there is the chance that survivors can find themselves at the mercy of anyone the accused party wants to represent them. The accused is not permitted to cross-examine but they are the one who appoints those who do, meaning a survivor can be questioned by whoever is appointed as an advisor of the accused.

As far as punishment for perpetrators of sexual violence goes, a majority are not prosecuted. RAINN statistics show that in the United States, out of every 1,000 sexual assaults only 230 will be reported. Furthermore, 5 cases will lead to felony convictions and only 4.6 rapists will actually be incarcerated. Compared to other crimes, robbery cases are 4 times more likely to lead to incarceration while assault and battery cases are over 7 times more likely to lead to the same conclusion.

The length of sentences once a case has actually been prosecuted varies. According to a study done by the National Research Counsel in 2014, from the year 1980 to 2010, the average time served for sexual assault has peaked at just over 6 years with the lowest point being slightly over 2 years. The notoriety of cases in recent years has shined a spotlight on how sexual violence is prosecuted. The most famous example being the case of convicted rapist Brock Turner who was sentenced to just 6 months in jail of which he only served 3 after being released early.

Campus law enforcement is a significant cog in the machine of addressing sexual violence. Of sworn campus law enforcement officials, 86% have the authority to arrest outside of campus grounds and the same percentage of campus law enforcement agencies have employees with specific roles involving rape prevention programming. By enacting these alterations to Title IX, trust in campus law enforcement could be negatively impacted. With low reporting rates from students already evident, there’s a possibility that these numbers could lower even further.

Students choose not to report for various reasons but according to RAINN approximately 9% of students do so because they think police wouldn’t or couldn’t do anything to help them. While that percentage is small now, if trust in the campus police erodes, we could see this reasoning become more relevant.

With the changes, colleges will no longer have to designate most employees as “mandatory reporters”, meaning that if a student discloses a sexual assault to a university staff member, they won’t have to notify the Title IX office. This could drastically alter data collected by Title IX leading to a skewed perspective on how prevalent campus sexual assault is. If this is allowed to happen it will impact the way we look at campus sexual violence for years to come.

Since DeVos announced her plan, 17 states and the District of Columbia have filed a federal lawsuit to block it. The basis of the lawsuit claims that the new policy undercuts existing mandates in Title IX. It also states that the set implementation date of August 14th is not appropriate in light of the ongoing coronavirus pandemic. With schools debating on whether or not to even allow students on campuses come fall semester, now does not seem like the time to be overhauling legislation meant to keep those students safe.


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