How To Argue About Title IX If Betsy DeVos’ Decision Makes You Absolutely Livid
On Thursday, Education Secretary Betsy DeVos announced that she would be essentially gutting Obama-era Title IX sexual assault protections. Implemented in 2011 during President Obama's term, the protections and guidelines were lauded by advocates and sexual assault survivors as a step forward. But these guidelines have been controversial from the start with critics saying that they infringe on the rights of those accused of sexual assault. If you vehemently disagree with DeVos' decision, here's how to argue about Title IX.
In her announcement, DeVos said that the 2011 Title IX guidelines were insufficient and overreaching, and contributed to a "failed system." She added: "Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students."
Though still vague in terms of what specific policy changes would be made, DeVos' decision came as no surprised given that the education secretary has made considerable efforts to recognize those accused of sexual assault publicly. "Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined. These are non-negotiable principles," she said in her speech.
Many disagree that the burden of proof should fall on sexual assault survivors. If you ever find yourself in an argument about why DeVos' decision is harmful for survivors, here are some points to use.
Argument: Obama's 2011 Guidelines Didn't Respect The Rights Of The Accused
Your response: In the years following the implementation of the Title IX guidelines, those accused of sexually assaulting a classmate began suing their respective universities for "railroading" them. Those lawsuit plaintiffs, who were young men, said that college administrators' investigations lacked due process. They also maintained that they were innocent of sexual assault and had engaged in a consensual encounter.
Sexual assault allegations are notoriously difficult to prove. Even if there is direct evidence (bodily fluids or fibers) that a sexual encounter did occur, that alone is not enough to prove sexual assault. Essentially, cases can become the alleged assailant's word agains the alleged victim's word. Assuming that those involved are being truthful, it's one person's perception against another.
Studies suggest that young men's account of sexual encounters might not be the most reliable voice in the room — and that they may maintain innocence even after they've been found to have assaulted a classmate. NIH-backed research shows that men often over-interpret actions, thinking another's actions are more sexually charged than they are actually intend to be by the other. This means that some men could believe that their partners are giving consent or expressing interest in a nonverbal way, when that may not be the case. Furthermore, a small, more recent survey by a journalist shows that some men are reluctant to ask for consent, seeing the question as a buzz-kill.
Therefore, a young man who is found guilty of sexual assault and maintains his innocence is not necessarily an indication of an unfair system, but more likely an indication of a culture of male entitlement. Nonetheless, he as an accused person should be listened to — he's entitled to it by the Constitution.
Argument: DeVos Was Right To Say There Should Be A Notice-And-Comment Period
Your response: DeVos said that guidelines will be changed to include a "notice-and-comment" period. She didn't elaborate on what exactly that might mean, but if it means she's going to encourage universities to allow those accused to confront or cross-examine their alleged victims, that could be devastating for true victims.
Such a process could even discourage victims from reporting sexual assaults, according to Annie Clark, a sexual assault survivor-turned-activist. "If a survivor is told that they would have to face their rapist, and that person would be allowed to interrogate them, that could absolutely have a chilling effect," Clark told NPR.
So while the accused certainly has a right to be heard, and investigations should be conducted in an orderly and thorough fashion, making victims face their alleged assailants would be incredibly cruel, and hurt schools' efforts to combat sexual assault on campus, overall.
Argument: Obama's Guidelines Lowered The Standard For Proof Of Guilt Too Much — And Unfairly.
Your response: Devos was especially critical of Obama's decision to require schools use the standard of a “preponderance of the evidence” to find the accused guilty, rather than the “beyond a reasonable doubt” standard used by the criminal justice system.
However, according to the advocacy group SurvJustice, the legal system's standard is unnecessary since college investigations don't result in jail time, but usually at most expulsion. “That’s not really appropriate on the campus level," Laura Dunn, the founder and executive director of SurvJustice, told The Washington Post. "We’re not locking people up, executing them, putting them away for years denying their liberty.”
And since, as discussed above, it's incredibly difficult to prove sexual assault "beyond a reasonable doubt" in most cases, using the criminal justice system's standard could result in guilty assailants walking free.
Argument: The Courts Should Handle Sexual Assault Cases, Not Schools
Your response: According to the advocacy group Know Your IX, having the criminal justice system would make sexual assault investigations slower and more painful for the victims. When schools successfully investigate cases, they can provide accommodations for the supposed victims — academic considerations, housing changes, etc. — far more quickly than the criminal justice system could.
Furthermore, if and when a criminal case is brought against an alleged assailant, the defendant in the case and trial will be the state, not the victim, which could mean his or her needs aren't considered as much as they should be.
Argument: Obama's Guidelines Made The Office Of Civil Rights' Enforcements Unnecessarily Political
Your response: DeVos argued that Obama's policies encouraged the Department of Education's Office of Civil Rights to push universities to punish those accused, rightly or wrongly. However, according to Catherine Lhamon, the head of DOE's Office of Civil Rights during Obama's presidency, schools were not pushed to side with accusers or the accused, but to conduct investigations fairly.
“Over and over again, OCR found schools that were doing things that were not right. We called it when it harmed student survivors, and we called it when it harmed students who were accused,” Lhamon told The Washington Post.
DeVos has not directly addressed Lhamon's account, but instead has relied upon the criticisms of discontented university administrators and faculty members.
Argument: DeVos's Roll Back Of Title IX Protections Isn't About Civil Rights. It's About Fairness.
Your response: For those hearing this argument, DeVos touting fairness may be appealing. However, when taken in a larger context of the hollow rhetoric used by the Trump administration, it's hard not to see it as an infringement on survivors' rights.
According to the Constitution's Fourteenth Amendment, Americans have the right to be free of sex-based discrimination. Nonetheless, in his first 100 days in office, Trump decided to make the lot of women even more difficult — a key example of how Trump disregards the needs and rights of those marginalized by American society. According to the Center for American Progress, he undid the Fair Pay and Safe Workplaces Executive Order, proposed defunding Planned Parenthood, brought back the Global Gag Rule, among other things.
For Trump and DeVos, "fairness" seems not to fully take into account the situation of those harmed. They strive to make sure that survivor and assailant, or men and women, are treated no different by the law. This would be fine if we lived in an ideal world free of patriarchal oppression, but unfortunately, both survivors and women need protection from societal ills and sex-based discrimination. For survivors of sexual assault, DeVos' idea of "fairness" in dealing with Title IX is not particularly fair at all.