U.S. Secretary of Education Betsy DeVos has proposed substantial changes to Obama-era Title IX policies, that, if put into effect, will have significant ramifications for survivors of sexual harassment and assault.
Title IX of the Education Amendments Act of 1972, colloquially known as “Title IX,” is a federal law that prohibits discrimination on the basis of sex in education. All universities that receive federal funding, including UCLA, have a Title IX coordinator who fields gender discrimination complaints, most regarding sexual harassment and assault. In addition to conducting investigations into allegations and enacting punitive measures, university Title IX offices provide supportive measures for survivors, such as finding alternative housing or coordinating with professors to provide academic support.
DeVos’ revisions would considerably limit schools’ power to respond to allegations and dissuade survivors from coming forward in a number of ways. These rules appear to be motivated by the myth of a false accusation epidemic, when in reality false accusations comprise an estimated 2-10 percent of reports, and only 20 percent of college survivors report their sexual assaults to schools or police.
The Title IX process is not a criminal proceeding and is not meant to be; survivors can choose to press charges and go through the court system separately if they wish, but the Title IX process should be an equitable administrative investigation. Patty Crawford, former Title IX coordinator at Baylor University, said that the investigation of a Title IX claim under DeVos’ rules would become “a trial [rather] than a trauma-informed hearing process.”
The following are the major proposed changes and their consequences for university Title IX investigations:
1. Schools’ ability to provide supportive measures for survivors would be drastically limited.
One of the most powerful tools that the Title IX office currently wields is its ability to provide supportive measures for those that bring a claim to the office during the course of an investigation. These measures can make a world of difference to a survivor and prevent intimidation or further harassment, thereby ensuring fairness and equity in the process. For example, the complainant has the right in an ongoing Title IX investigation to have a no-contact order put in place between themselves and the accused.
The proposed revision to this requirement would prevent supportive measures that place a burden on the accused prior to a finding of guilt by mandating that the supportive measures be “non-disciplinary” and “non-punitive.” Thus, in the case that a no-contact order is broken by the accused, the university would have no power to punish them or otherwise enforce the rule because that would be “punitive.”
This revision could also prevent Title IX coordinators from relocating the accused from a dorm or class they share with the complainant, as that would also be considered “disciplinary.” This places the burden on the survivor to move their schedule or life around to avoid seeing their perpetrator in class or at home. This rule opens the door for intimidation and guts some of the most important protections for survivors.
2. Schools would not be able to investigate conduct that occurred off-campus.
Perhaps the most drastic proposed revision, this change would limit Title IX investigations to incidents that occurred on school property or at school-affiliated programs. Schools would not be able to investigate incidents that occurred on study abroad programs, online, and potentially even in fraternity houses (the rules lack clarity on whether Greek houses are considered school-affiliated programs). This proposal is one of the more surprising proposed revisions because it fails to include key settings where assault and harassment occur, as only 8 percent of rapes occur on campus. Perpetrators would be allowed to escape investigation and accountability to the survivors of their horrendous conduct, simply because said conduct occurred outside of a university’s jurisdiction. Title IX exists for the purpose of equal access to education regardless of gender, and assaults that occur off-campus still affect the educational experience of survivors; thus, ignoring off-campus assaults further perpetuates this inequity in education.
3. The definition of harassment would be narrower.
Under DeVos’ new guidelines, the definition of harassment would be significantly narrowed. Harassment is currently defined by the Department of Education as “any unwelcome conduct of a sexual nature.” Under the proposed rules harassment would have to be “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.”
4. Survivors would be required to undergo live cross-examination.
Currently, Title IX offices at UC schools use a single-investigator model — a single administrator investigates the allegation and speaks to both parties in order to determine whether a student code of conduct violation has occurred. DeVos has proposed that representatives of each party may conduct a live cross-examination of the other party; in other words, the survivor would need to be present at the hearing. Though the rules prohibit the respondent from engaging in cross-examination directly, live cross-examination would retraumatize a survivor of assault or harassment due to its adversarial nature. In fact, it mirrors the live Brett Kavanaugh hearings of 2018, in which Dr. Christine Blasey Ford was interrogated about one of the most traumatic moments of her life, or the hearings in which Anita Hill described Clarence Thomas’ harassment of her. This policy revision would likely prevent survivors from coming forward with their reports.
5. Universities could use a higher standard of proof for determining whether an assault occurred.
The Department of Education’s 2011 “Dear Colleague Letter” mandated that schools use the preponderance of the evidence standard in deciding whether a person committed assault; this standard translates to more likely than not, or a 51% chance of guilt. The preponderance standard is used in federal civil courts, but is lower than the standard of proof in a criminal investigation, which entails that the event occurred beyond a reasonable doubt.
DeVos has proposed the “clear and convincing standard,” under which it must be highly or substantially probable that the evidence presented is true. This standard gives more leeway to the perpetrator and puts the onus of proof on the survivor to retell and defend their own traumatic experience.
The UC has stated several times that it is committed to preserving current Title IX regulations, but as the Department of Education finalizes its rules we can continue to make our voices heard in person and online, particularly through contact with your federal representatives. Though the federal public comment period for the proposed guidance is over, in the coming weeks it is more important than ever to stay vigilant in our understanding of both Title IX and DeVos’ attempts to effectively stunt it.