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CollegesThe Future of Title IX on Campus

In one of those ironic twists of fate you can’t make up, Secretary of Education Betsy DeVos chose National Campus Safety Awareness Month to deliver a speech announcing her intention to do damage to, if not dismantle, the Title IX protections for victims of sexual assault on campus. Her announcement was expected. The administration and Secretary DeVos telegraphed their intention to roll back Title IX protections since Secretary DeVos was appointed.

For those of us who have fought against gender based violence, on and off campus, there’s a lot to dislike in Secretary DeVos’s speech and her plans to revamp the Office of Civil Rights (OCR) enforcement of Title IX. The Secretary’s plans are a call to general quarters for victim advocates, but it is only the first salvo in the battle preserve the civil rights of victims of sexual violence on campus.

A SLOW WALK TOWARDS IRRELEVANCE?

The Department subsequently issued another “Dear Colleague” letter (DCL) formally withdrawing the policy statements in the 2011 DCL and the question-and-answer guidance issued in 2014. Secretary DeVos invoked the traditional rule making process, where rules are drafted, published, and a period of time is given for those interested to submit comments before a final rule is promulgated. On its face, this is not a bad thing. The 2011 DCL was justifiably criticized for not going through this regular order. But it is clear from her speech and subsequent policy statements that OCR will not make enforcement a priority during this process, potentially slow-walking Title IX to its death.

Reaction was swift from those supporting vigorous enforcement of Title IX and the procedural process set out in the 2011 DCL. This Washington Post article reports some of that reaction. In an essay at Cosmopolitan.com, Sen. Kristen Gillibrand (D-NY) wrote that the decision “betrays our students, plain and simple.”

Others applauded the move, believing that the OCR went too far in 2011, depriving those accused of violating campus conduct codes of their rights to due process. Andrew Miltenberg, an attorney who has represented “dozens” of male students accused of sexual assault, believes that the 2011 DCL opened the way to colleges creating “kangaroo courts to adjudicate accusations of sexual misconduct and destroying the lives of wrongfully accused male student.”

It should be no surprise that I am more in Sen. Gillibrand’s camp than I am the camp of those welcoming the change. That is not to say that there couldn’t be improvements in the present system. Ditching it entirely smacks to me of destroying the village to save it. There is an opportunity to weigh-in on any new rules, which those representing survivors should do at every turn. There will be many more pixels slain by me and others about what the new rules should look like. Saving that for later, I want to look at two aspects of Secretary DeVos’s decision and speech that are particularly disturbing.

“MEN’S RIGHTS” AND RETRENCHING THE OLD MYTHS

The battle over what process is due when a student is accused of violating a campus code of conduct is fought by one side with some pretty hot rhetoric, like “destroying lives” and “kangaroo courts.” Make no mistake, a process fair to all is essential, but one should ask how much of the effort to re-make the process is driven by a fundamental belief in rape myths; how much is misogyny dressed up in the language of due process?

Secretary DeVos emphasized the rights of students who may be falsely accused, betraying a belief in the central tenant of rape mythology, that most accusations of sexual assault are false. Her acting head of the Department of Education’s OCR said as much to the New York Times, asserting that “90 percent” of campus sexual assaults are really drunk sex that the, usually, woman regrets after she sobers up. Though she later apologized, it’s hard to credibly walk back such a strong statement, especially in light of the Secretary’s actions just months later.

All empirical evidence proves how wildly inaccurate that belief is. It is a persistent and pernicious way to minimize and demean those victims who come forward. Facts should matter. The decision to throw out present process shouldn’t be based on myths.

It’s not clear from reports I’ve read how much input victim advocates had in the Secretary’s decision. It was widely reported that she met with so-called men’s rights groups before announcing her decision. If she granted equal time to victim advocates, the final announcement shows that the men’s rights groups had more influence on her decision.

It is appropriate for decision makers to get input from all stakeholders. But the decision on who to invite to the table should be made carefully. Every advocate group does just that, advocate for their constituency. Their arguments should be judged with a thorough understanding of what supports their arguments. Did Secretary DeVos really have this thorough understanding? Did she know that some of those she consulted with were members of The National Coalition for Men, a prominent member of which characterized the suicide of a Canadian men’s rights activist as “murder by disinterest by the Feminist State of Canada”?  

THE TRIVIALIZATION OF RAPE

Secretary DeVos’s speech continues what I see as a disturbing trivialization of sexual assault. Minimizing the trauma of sexual violence is nothing new, but it is influencing the public debate in a way I haven’t seen before. During the last presidential campaign, sexually assaulting a woman by grabbing her “pussy” became sexual misconduct, and then simply locker room talk about boys being boys.

Continuing the trend, Secretary DeVos frequently conflates sexual misconduct – which is a violation of a college’s student conduct code – with sexual assault. Saying that sexual assault would be a violation (I hope) of every student conduct code is preaching from the Book of Duh. But constantly referring to rape simply as sexual misconduct trivializes the trauma experienced by survivors. It opens the door to a policy of indifference, if not outright hostility, toward both sexual assault and other forms of sexual harassment that women experience every day– the name calling, the jokes about gender, the “accidental” touching –harassment that can only be described as gender discrimination.

This debate demands clarity of thought and language that is, at present, lacking. There should be no confusion over the difference between sexual assault and sexual harassment or sexual misconduct as defined by an institution of higher education. In the debate to come there may a discussion about both, and whether there should be a difference in the institutional response.

FROM CHALLENGE COMES OPPORTUNITY

I’ve talked with many campus law enforcement officers and Title IX coordinators. After hearing from them I’ve come to understand better the confusion caused by the 2011 DCL. What I haven’t heard is a retreat from the commitment to fighting sexual assault on campus. One could argue that some institutions swung the pendulum too far in response to the 2011 DCL. However, the solution is not to swing wildly in the opposite direction. The challenge now is to bring the pendulum back to a reasonable position.

The opportunity is now open to have some input and influence on the rule making process. It will be a long and bumpy process, but all voices can be heard. I have been through the rule-making process before, and I was impressed by how seriously the government employees, the bureaucrats below the political appointee level, considered all viewpoints. I can’t but hope that the new rules will restore Title IX to its rightful place as a powerful weapon against gender discrimination.  

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