Title IX Guidance Favors the Accused

DeVos dismantles Obama-era protections

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Secretary of Education Betsy DeVos rescinded the 2011 Dear Colleague Letter and 2014 Question and Answers on Title IX and Sexual Violence, threatening thousands of sexual assault survivors with longer, more difficult paths to justice.

Even before DeVos’ changes, announced on Sept 22, Title IX was imperfect, time consuming andtraumatizing for survivors. However, the Obama-era guidelines attempted to put the least amount of burden on survivors, whereas these temporary guidelines will do the opposite.

Title IX needs to be changed, but the current department is moving in the wrong direction. DeVos and current members of the Department of Education (DOE) such as Candice Jackson, head of the department’s Office for Civil Rights, have a history of downgrading the severity of issues surrounding sexual assault and misplacing blame on survivors.

Illustration by Lizzy Choi

“The accusations — 90 percent of them — fall into the category of ‘we were both drunk,’” Jackson said in an interview with The New York Times.

Consent requires the ability to give consent. Regardless of alcohol consumption or any other substance, every person has a right to have their case taken seriously. Jackson’s words are influencing not only the new guidelines that will be released, but also the temporary guidelines established by the 2017 interim Q&A on Campus Sexual Misconduct.

The decision to repeal Obama-era guidelines, while not unexpected, is a massive step backward. A final draft will be released “in the coming months” for public comment from stakeholders, according to a DOE news release. In the meantime, the 2017 interim Q&A establishes guidelines that threaten the well-being of survivors by stripping protections given during the Obama administration.

The Obama-era protections included a 60-day timeline to complete investigations. DeVos’ new policy does not include any set timeline and gives the accused the right to cross-examine the survivor, which can be an intimidating and potentially traumatizing experience that deters many survivors from reporting.

It also creates an “informal resolution of complaints,” a type of resolution that takes the place of a full investigation and is implemented at the discretion of the school. If an informal resolution is used, the school is not required to report cases to any external offices, which could allow for schools to sweep these issues under the rug.

Schools also now have the option to silence the survivor by allowing only the accused to appeal with new evidence. While

the option for both parties to appeal does exist, DeVos deliberately outlines a path for schools to take that right away from survivors. This shows DeVos’ misinformed belief that false accusations of sexual assault are as prominent as the epidemic of sexual assault on campus.

“One rape is one too many, one assault is one too many, one aggressive act of harassment is one too many. One person denied due process is one too many,” DeVos said.

Though DeVos speaks about her empathy for survivors, these guidelines contradict her words and reaffirm her overwhelming sympathy for the accused. By revoking the survivor’s right to appeal, DeVos denies survivors due process and denies the epidemic of sexual assault on campus. Her new guidelines strip protection from survivors, potentially allowing the assailant to get off with no punishment and in turn putting others at risk.

The Obama administration erred on the side of the survivor by requiring a lower burden of proof, whereas the interim Q&A increases it. In cases of sexual assault, evidence
is often difficult to determine due to the sensitive nature of these crimes. By changing
the standard of evidence, DeVos is painting a picture that false accusations are just as prominent as assaults, which is untrue. This creates an unsafe
situation for the survivor and puts all students at a greater risk as more assaults will go unpunished.

There is hope that the permanent guidelines, which do not have a release date, will provide a just process for both parties and ultimately make college campuses safer places. However, given the nature of the temporary guidelines this hope seems optimistic.

The DOE needs to evaluate the damage caused by rescinding the 2011 Dear Colleague Letter and 2014 Q&A on Title IX and Sexual Violence. As it stands, the accused have more protection than the accuser. If DeVos believes one person denied due process is one too many, she should not deny survivors the protection and rights she hopes to provide to the accused.