In 1972, Congress enacted a federal law to prevent sex-based discrimination in schools known as Title IX. Under Title IX, survivors of sexual violence can legally hold their universities accountable for keeping them safe and in return universities receive federal funding to protect their communities. Since its introduction, students accused of sexual misconduct have spoken up about the lack of due process provided to them during investigative procedures, some even going as far to file a class-action lawsuit against universities in California.
On Wednesday, May 6, Secretary of Education Betsy DeVos announced revisions to Title IX that she says will make the process “fairer and better protect accused students.” While everyone has a right to a fair trial, the new Title IX rules goes so far in the opposite direction in the name of due process, that it will greatly discourage survivors of sexual violence from speaking up in the first place.
Some of the most alarming changes to Title IX include mandated real-time cross-examination of each student, a narrowed definition of sexual harassment and strips universities of responsibility to deal with off-campus incidents. These new rules make an already emotionally draining process seem even more terrifying for sexual assault accusers.
While DeVos asserts that no student has to come face-to-face with the person they are accusing, they will still be subjected to cross-examination from the accused’s lawyer, which is an experience that could be especially retraumatizing for accusers and might just be enough to discourage them from reporting altogether.
The adjustments concerning the language of Title IX may seem minimal, but in reality the word choice could greatly affect the outcome of these cases. The new definition of what sexual harassment warrants investigation is “severe, pervasive and objectively offensive,” allowing schools more wiggle room to simply write off complaints. Requiring all three means that a severe instance of harassment that only happens once, or misconduct that happens daily but the incident itself is not considered severe can easily be ignored by universities now.
It is also next to impossible for school officials to come to a definitive conclusion on what is objectively offensive. In the 2018-2019 academic year TIME reporter Nicole Bedera conducted research on how one university managed Title IX complaints. In her research, she found that, “Title IX administrators labeled most types of sexual misconduct or discrimination as ‘not that bad,’ including everything from unwanted hugs to removing clothing in the workplace to death threats from physically violent abusers. There were few — if any — violations that they unanimously agreed were ‘offensive.’”
Perhaps the change that raises the most red flags is the clarification that schools need to respond to off-campus incidents that are in places or during events that the institution is involved with. The wording means that fraternity houses would be covered, but if sexual violence occurs in a private off-campus apartment, the university would not be obligated to respond. This is extremely concerning considering that only 8% of sexual assaults take place on school property and situations where sexual violence is more likely to happen, like a party or a date, would probably take place off campus as well.
In addition to these new rules, DeVos is expecting all changes to be implemented by August 14, which is highly unreasonable considering the ongoing COVID-19 pandemic. Many universities are still overwhelmed with the transition to online learning and the drastic loss of revenue with no students on campus. DeVos is overeager because this is something the Department of Education has spent three years developing; however, one summer to integrate all these changes is simply not enough time and it will only put more on the shoulders of university employees who are already spread thin.
It is clear why DeVos wanted these adjustments in particular and it is not because she is looking out for accusers and the accused. The only people DeVos is looking to please are the universities who are projected to benefit from the drop in sexual violence cases that these changes will cause.
From 2011 to 2015, United Educators, an insurance cooperative that insures hundreds of colleges and universities, saw that fewer than 100 sexual assault cases resulted in monetary loss for the institution, but those that did amounted to $21.8 million. On average, a university lost $350,000 from legal action and demand for damage in sexual assault cases. In addition, the Department of Education has already predicted that the alterations to Title IX could collectively help institutions save between $48.6 and $62.2 million over the next 10 years.
Since the official decision about revamping regulations was released, there has been strong backlash from sexual assault survivors and civil liberties groups alike. The American Civil Liberties Union (ACLU) has filed a lawsuit against the Department of Education that looks to block DeVos’ rule changes. University of California President Janet Napolitano released a statement criticizing the final Title IX rules, stating, “UC opposes these ill-conceived changes and, in spite of them, will continue our hard-won momentum through education, prevention and processes that are fair and compassionate to all parties. We remain steadfast in our commitment to our students and community, and will respond to the rules with care and thoughtfulness.”
The public has spoken and the public is right — these revisions to Title IX could not have come at a worse time and will render the federal law basically useless. The Department of Education should not be placing geographic limitations on the sexual assault cases universities have jurisdiction over. It is not complicated; if a university’s student is involved with or accused of sexual violence, then the university should be obligated to respond. Nor should the language of the law be so strictly defined that schools can effortlessly turn a blind eye. The wording needs to be rewritten that any and all instances of sexual harassment should be taken seriously no matter the severity and over what timeline it occurred.
Furthermore, while maintaining due process is important, it should not be at the cost of the survivors’ privacy and mental health. Subjecting survivors to retraumatizing cross-examinations is not going to make this process more effective. Survivors should have the option of their lawyer standing in for them or be able to submit a victim impact statement, as Chanel Miller did when she was raped by then Stanford University attendee Brock Turner.
The revisions to Title IX DeVos and the Department of Education have made sends one clear message to sexual assault survivors: that they should not step forward. There is nothing wrong with wanting due process but progress cannot be undone in order for that to happen. The public and universities need to continuing raising their voices against these changes for the countless number of sexual assault survivors who felt like they could not do the same in the past. For these new rules to be enacted, it would truly mean one step forward and two steps back.