On Friday, Aug 14, a new set of guidelines for Title IX enforcement in schools went into effect after being passed by the Department of Education (DOE) under Betsy DeVos.
Title IX, a nondiscrimination law often used to punish perpetrators of sexual harassment and assault in schools since the 1970’s, is considered a major milestone in working against the prevalence of sexual misconduct. However, many feel that this new ruling under DeVos is now causing Title IX to be used to silence victims.
The ruling focuses a great deal on implementing what is referred to by the administration as “due process” for those accused of sexual harassment, abuse and assault. In fact, throughout the ruling it appears that the writers were under the assumption that sexual misconduct is, if anything, over-reported. That is, the ruling asserts there is a significant problem of false claims by people coming forward as victims of being sexually harassed, abused or assaulted.
While false accusations of sexual misconduct do occur, it seems more concerning that sexual abuse and rape are underreported. It also seems more concerning that only a tiny fraction of reported rapes result in justice for the offender, even in legal systems, which the ruling intends to make schools further resemble. For example, in Minnesota, only 7% of rapes that are reported to police result in any type of conviction, according to reporting published by the Star Tribune.
A staggering 25.9% of undergraduate women experience “nonconsensual sexual contact by physical force or inability to consent,” according to a 2019 Campus Climate Survey by the Association of American Universities.
Yet with these facts in mind, the DOE chooses to prioritize the rights of those accused of sexual misconduct. In fact, the DOE’s relationship with the stats and data regarding sexual misconduct seems problematic in and of itself.
“Throughout the preamble, the Department references and summarizes statistics, data, research, and studies that commenters submitted. The Department’s reference to or summarization of these items, however, does not speak to their level of accuracy,” according to the ruling.
Why would the DOE include statistics, data, research, and studies that they don’t have full confidence in regarding their accuracy? Just like any other governmental agency, it is the responsibility of the department to provide factual information, and to base policy on factual information.
A common argument found on the conservative end of the political spectrum regarding rape allegations focuses on the dangers of “cancel culture” and the negative impacts on the lives of those accused of sexual misconduct.
“These [new] procedural rights reflect the very serious nature of sexual harassment and the life-altering consequences that may follow a determination regarding responsibility for such conduct,” according to the ruling.
One of these new procedural rights mandates that a victim of sexual assault should be cross-examined by their abuser. The ruling also removes mandatory reporting for school employees, except in the case of young children, making it more possible for cases of rape and abuse to go unreported. Additionally, victims can no longer remain anonymous when accusing someone of sexual misconduct.
I think we can all get behind the spirit of due process, sure. The DOE claims to aim for “strong procedural protections regardless of whether the student is a complainant or respondent,” but the ruling’s priorities seem to reveal a greater focus on protecting the accused from false accusations than on punishing those guilty of sexual misconduct.
If we want real justice for sexual misconduct, we need to begin with encouraging reporting rather than focusing our efforts on creating protections for perpetrators. School reporting systems already favor sexual predators. Our efforts should first go to improving reporting, reducing serial predation, reducing the prominence of abuse and rape in school settings, and obtaining a higher standard of justice for those who do manage to report their sexual victimization.
The writers of the ruling aim to correct a problem they perceived in previous Title IX guidance. It is apparently felt by the current DOE that previous guidance “implied that due process only benefits respondents, and implied that due process may need to yield to protect complainants,” according to the ruling.
The passage they refer to as concerning is the following: “Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.”
This guidance has been retracted and dismissed by the DOE. So, now is it permissible to restrict and unnecessarily delay Title IX protections for victims of harassment and assault? It appears that will be the result.
