Op-Ed: Yes, it’s time to revisit Obama’s Title IX campus sexual assault guidance
Last week, Education Secretary Betsy DeVos did something her critics found unthinkable: After meeting with college administrators and student victims of sexual assault, she met with students who claim they had been falsely branded as rapists by their learning institutions under a provision of the law called Title IX.
The response on the left was unsurprising.
She’s “enabling rape deniers,” exclaimed the headline of Jessica Valenti’s column in the Guardian. These meetings are “a slap in the face to survivors,” said Sen. Bob Casey, D-Pa. She is “outright neglecting” her department’s civil rights duties, said Sen. Patty Murray, D-Wash.
On the contrary, if civil rights are a priority for DeVos, these meetings were a necessary exercise given that her agency is charged with enforcing a statute that has invited serious concerns about due-process rights, sparked scores of lawsuits and dozens of favorable decisions for the wrongly accused.
Title IX is a 1972 law that prohibits sex discrimination in schools that receive federal funds but was broadly reinterpreted to allow college administrators — not law enforcement — to review student-on-student allegations of sexual assault.
The Obama administration issued controversial “guidance” in 2011, essentially mandating that students can be disciplined by their colleges based on a “preponderance of evidence” instead of “beyond a reasonable doubt,” the standard that applies to crimes.
This has reduced the burden of proof such that, in most cases, an accusation of rape is the equivalent of a finding of guilt.
But President Barack Obama’s Education Department went further than that.
Its Office of Civil Rights discouraged cross-examination of accusers, trained administrators to believe the accuser and directed universities to dissuade alleged victims from pursuing justice through traditional law enforcement channels.
DeVos is deciding the future of these guidelines.
According to KC Johnson, a professor of history at Brooklyn College, there is a conviction among Title IX supporters that sexual assault in the campus setting provides too many protections for the accused — things like the right to an attorney and an impartial jury of peers.
Such protections intentionally are not present in campus tribunals, tipping the scales to favor the alleged victim.
For survivors, that might feel like righteous justice against a culture that for too long did not believe or even blamed the victim. But the reality is that the current procedures operate more like a system of retaliation than of justice, with the accused sometimes becoming victims — of false accusations.
Researcher Cathy Young explains that while many victims’ advocates cite a low rate of false accusations, the truth is much “knottier” because of how reports are classified. “At whatever rate such cases occur,” she said, “they should not be dismissed as statistical blips,” especially when false accusations have resulted in expulsions, ruined careers, even suicides.
They’ve also sparked rather frequent legal action against universities.
The Foundation for Individual Rights in Education estimates that more than 170 students have brought legal challenges since Title IX’s controversial reinterpretation, most related to due-process violations. And in more than 50 of the completed cases, the courts found for the accused.
That should suggest to policy leaders that something is awry in how universities are handling these cases.
And it should vindicate DeVos’ meetings with the accused as well as the victims.
There’s no denying that sexual assault on campus was historically underreported and largely unaddressed, but that is no longer the case. The pendulum has swung too far in the other direction.
Anyone who truly cares about civil rights will see that DeVos’ decision to revisit the Title IX guidelines and to invite the perspectives of all those involved is not only necessary but long overdue.