DeVos’s Proposed Title IX Changes a Threat To Safety on Emory’s Campus

The U.S. Department of Education’s proposed changes to Title IX, the federal civil rights law passed to ensure gender equity in education, would have deleterious effects on student safety here at Emory and universities nationwide. The New York Times reported that the rules would allow schools to require a stricter standard of evidence in handling sexual misconduct cases, narrow the definition of sexual harassment and reduce universities’ liability in sexual misconduct cases. These reported changes would hinder the investigative process of sexual assault at colleges, as well as bolster the rights of the accused at the expense of their accusers. These supposed “reforms,” proposed by an administration headed by a man who has been repeatedly accused of sexual misconduct, would sabotage Title IX’s goal: to protect students. Emory should do everything in its power to lobby against these potential changes while preparing to preserve safety and inclusivity should the reforms go into effect.

Under the rules set by the Obama administration, universities were required to use the “preponderance of evidence” standard in judging sexual misconduct cases. Under U.S. Secretary of Education Betsy DeVos’s proposed rules, however, they will now be allowed to use the higher “clear and convincing” standard. This sets an unnecessarily high and intimidating threshold for finding someone responsible. At a time when nearly 70 percent of sexual assault victims already don’t report their case to law enforcement, weakening Title IX’s protection of victims could further deter them from taking action.

While the proposed rules would ostensibly allow universities to choose between the two standards, they would require them to apply the same standard to all civil rights investigations, ignoring the inherent sensitivity of sexual assault cases. Should these rules go into effect, Emory must continue to use the preponderance standard and to inform students of this decision as it did last Fall. Schools’ ability to choose which standard to use is also strange — a sexual misconduct case could return opposite outcomes if tried at different schools. Schools should universally prohibit sexual misconduct without variance, but the different standards could confound that.

The proposed rules would also significantly narrow the definition of sexual harassment, changing it from “unwelcome conduct of sexual nature” to sexual conduct “so severe, pervasive and objectively offensive” that it denies access to education. This is a major and concerning change, one which ignores the fact that sexual harassment comes in many forms and would preclude victims from obtaining justice if they are unable to meet this strict definition. Additionally, victims of sexual harassment may be further deterred from even attempting to report their harassers because of the heightened rigidity.

The actions of DeVos and other Department of Education employees also call into question the methodology and motive used in crafting these proposals. DeVos has sympathized and met with “men’s rights” groups who have pushed discredited theories about the majority of sexual assault cases being false accusations. The department’s Civil Rights Chief, Candice Jackson, apologized after telling the New York Times that 90 percent of such cases fall into the category of “we were both drunk, we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.” In reality, the National Sexual Violence Resource Center estimates that false accusations account for only between two and 10 percent of the total.

DeVos’s administration has also proposed procedural changes that would erase protections for victims. The new rules would encourage the use of mediation, a process previously prohibited by the Obama administration, due to fears that survivors would be pressured into choosing mediation over pursuing a formal investigation. Emory had already adopted the possibility of using mediation in Title IX cases when under the Department of Education’s interim guidelines, but the proposed changes would also allow cross-examination between the accused and the accuser during hearings, unreasonably forcing victims to relive their traumatic experiences while in the same room with their perpetrator.

Further, DeVos has reduced schools’ legal responsibilities to provide safe campuses: investigations would only be required if the alleged assault occurred on a school campus or at a school-sponsored event, instead of merely requiring that the assault involves enrolled students. DeVos’ proposals rework Title IX to shun victims of off-campus assaults even if they are a member of the university, depriving them of a resolution process that is less invasive than criminal proceedings. This is alarming as 35 percent of Emory undergraduates live off-campus according to the Common Data Set for 2017-18, as do almost all Emory graduate students.

While DeVos’s proposed reforms more closely align Title IX procedures with the criminal justice system, that system is not one to emulate. Current legal procedures dealing with sexual misconduct are inadequate, and there is insufficient justification for such an alignment. Because the criminal justice system requires proof beyond reasonable doubt for a conviction, accusers are forced into long trials where all aspects of their personal history can be examined, resulting in less than 6 percent of rapes even being prosecuted. Title IX presents a less invasive chance for victims to obtain justice — it should not be tinkered with at the expense of student safety.