DeVos Finalizing Changes to Title IX
At the end of last month, The New York Times reported that Education Secretary Betsy DeVos is actively preparing modifications to Title IX. Specifically, these proposals target how federally-funded institutions handle sexual misconduct cases. These changes, which are being passionately debated by victims’ rights groups, men’s rights groups, students, and education administrators, would undo guidance set forth by the Obama administration and revolutionize the ways in which sexual misconduct cases are handled across the country. In this Highlight, I thought it would be a prudent review the proposed changes, as well as discuss their possible implications.
Reading about this topic in a Diversity Highlight may seem familiar to you, as I reported on it around this time last year as it first began to unfold. At that time, Secretary DeVos had just rescinded a 2011 Obama Administration letter that revolutionized the Title IX responsibilities of institutions of higher education. Essentially, this “Dear Colleagues” Letter mandated that if a “hostile environment” results from sexual misconduct, universities must take “immediate action to eliminate the harassment, prevent its recurrence, and address its effects.” This guide also directs universities to employ their own investigation into accusations of sexual misconduct, independent of any criminal investigation that may or may not be underway. The letter’s instructions were replaced with temporary guidelines that were drafted in 2001 and 2006. As a reminder, Title IX is the federal law that prohibits discrimination on the basis of sex at any educational or other institution receiving Federal financial assistance. It was the 2001 update that extended Title IX to include sexual misconduct as a form of denying educational access to a student.
Since the 2011 letter, a polarizing conversation regarding the handling of sexual misconduct has surfaced. Victims’ rights advocates praised the letter for its aggressive stance of holding schools accountable for problems they believe had been widely disregarded. Contrarily, men’s rights advocates believe the letter’s guidance disabled due process and provided no recourse for the accused. Some higher-education officials also believed that the guidelines forced them into unclear bureaucratic obligations. DeVos has also been especially outspoken about her disagreement with the letter. In sum, she believes that these rules exemplify federal overreach that has forced schools to create their own substandard judicial systems and processes. These inconsistencies, she believes, has been “a disservice to everyone involved.”
Having taken this past year to speak to those on both sides of this issue, DeVos and the Trump administration are nearing the conclusion of their changes to Title IX. The information that The New York Times has gathered is believed to be factual, but representatives from the current administration have declined to comment on the veracity of the report. One change of the current proposal affects the scope of an institutions’ responsibility of investigating sexual misconduct. In the 2011 letter, educational institutions were directed to investigate all misconduct matters that involved their students; however, the new ruling states that schools are only required to investigate accusations that happened either within their own programs or within the boundaries of campus. Any harassment, assault, rape, or other sexual misconduct that happens, for example, at an offcampus party, would not require investigation by the institution. Along these lines, the new guidance also states that schools would only be legally responsible for investigating formal complaints to school officials who have received “actual knowledge” of the misconduct taking place. A formal complaint, in this case, is one that was made to “an official who has the authority to institute corrective measures,” not, for instance, a residential advisor in a dormitory or an instructor of a course.
Arguably the most debated portion of these changes regard the evidentiary standards that institutions use to determine if the accused student is held responsible for the misconduct. The Obama-era ruling required that the “preponderance of the evidence” standard be enforced, which is the most common of standards in most civil and family court cases. This standard is met if the accusation was more likely to be true than not true. The new ruling would require institutions to follow the “clear and convincing evidence” standard, which is common in some civil, but mostly criminal cases. This standard puts a higher burden of persuasion on the side of the complainant and requires evidence that negates all possible doubt. Also, as an aside, the Obama-era letter allowed for an appeal process in institutional hearings, while the new ruling would leave that decision to each individual school.
Another hotly debated change includes preserving DeVos’s interim policy of using mediation between the complainant and the accused to reach informal resolutions to the accusations. In these situations, a hearing would be initiated between the two parties where each side could request evidence from the other with the intent of cross-examining them, even if either of the sides has no intention of using the evidence. The Obama administration addressed the possibility of using mediation. They concluded that it was needless, believing it would be “traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”
These new policies would not only change how universities mitigate sexual misconduct; they would also affect how sexual harassment is perceived in our nation’s highest court. The Obama administration directive defines “sexual harassment” in an expansive manner, declaring it as “unwelcome conduct of a sexual nature,” that includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” The Trump administration directive seeks to redefine this definition in a more specific way, declaring it as “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.”
As you can see, there are many changes in the works regarding how schools are to deal with sexual misconduct. Because the Trump administration prepares to follow the precedent of allowing for a period of public comment after the publishing, these rulings will eventually go into law, even without the approval of Congress (the 2011 letter did not allow for a public comment period, denying it from becoming law). The gravity of this possibility has caused a stir from members of both sides of this issue. Robert L. Shibley, the executive director for the Foundation for Individual Rights in Education, declared, “Going solely by what has so far been reported, it sounds as though the proposed rules will go a long way towards restoring meaningful due process protections to the campus justice system, which will benefit both accusers and the accused.” On the other side of the issue sits Jesse Davidson, the executive director for End Rape on Campus; he claims that these new rulings are “a tacit endorsement of making campuses a safer place to commit sexual assault, rather than a safer place to learn free from violence.” Regardless of opinion, this new proposal will yet again revolutionize how sexual misconduct cases are handled across the country.
With all of the changes discussed in this Highlight, there is surely much to digest. However, I want to leave you with a few questions to ponder going forward. What was your reaction to the opinions of both Robert Shibley and Jesse Davidson? Do you agree with the notion that there seems to be a tradeoff between due-process and the capacity for safety with regard to sexual misconduct at universities? Do you think that the proposed changes will help to lessen this tradeoff? And finally, do you believe that the ratification of these guidelines will make all students safer in schools across the country?
- “New U.S. Sexual Misconduct Rules Bolster Rights of Accused and Protect Colleges” –Erica L. Green, via The New York Times
- “Title IX and Sex Discrimination” via the U.S. Department of Education
- “Dear Colleague Letter” via U.S. Department of Education website
September 9-11 is Rosh Hashanah (Jewish Holiday)
- Commonly known as the “Jewish New Year,” this High Holy Day marks the beginning of the Jewish calendar. This holiday starts at sundown on the 9th and concluding on sundown of the 11th, and is celebrated in a variety of ways, such as attending a special prayer service and going to charity. “New fruits” (fruits that have recently come into season), especially apples dipped in honey, are also usually shared, symbolizing a collective wish for a sweet year to come!
September 15 – October 15 is National Hispanic Heritage Month
- Sponsored by a collection of national and governmental organizations including The Library of Congress and National Endowment for the Humanities, this month-long celebration honors the historical and societal contributions of all people of Hispanic/Latino heritage. This observance dates back to 1968 and begins each year on September 15th, the anniversary of independence of five Latin American countries (Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua).