Editor’s Note: For an alternative viewpoint, please see Point: Title IX Reforms Are Contentious, but Necessary
“We don’t see you. We don’t hear you. We don’t believe you.”
That’s the message Secretary of Education Betsy DeVos is sending with her proposed new rule regarding Title IX, the civil rights law that governs schools’ sexual harassment policies. The rule will give new rights to the accused, reduce liability for schools, and tighten the definition of sexual harassment.
This policy would continue her rollback of evidence-based Title IX practices instituted by the Obama administration that defined “unwelcome conduct of a sexual nature” to include “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
Those offenses are all too familiar to college women. They know that the scope of sexual harassment and abuse includes a wide range of actions that the new rules would willfully ignore.
The Trump administration has made it clear that when it comes to accusations of sexual harassment and assault, their default response is dismissal. The Brett Kavanaugh hearings made that crystal clear. Dr. Christine Blasey Ford was vilified, mocked and discredited. Now, Secretary DeVos would make this response to credible accusations of sexual harassment the template for national education policy.
If there’s one thing that we’ve learned from Kavanaugh, Weinstein, the #MeToo movement and the almost daily revelations that go unpunished, it is that survivors need to be heard, believed and supported. But Betsy DeVos has a different point of view.
The new rules would define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”
Who will set those standards? Will women be told by some committee of administrators that they should just get over themselves and go to class?
What’s more, the rules would require schools to respond only to complaints that happen on campus. It is estimated that 87 percent of college students now live off campus; therefore a vast majority of victims of harassment and assault could have very little protection.
And then there’s a new provision to allow schools to punish — punish! —complainants and witnesses if the school thinks they reported abuse in “bad faith.” This is not well-defined, nor is it easy to determine. Under this approach, schools might decide to retaliate against those who report.
Under current rules, students can report their sexual assault to anyone, including faculty and advisers, and a school is required to investigate when it “knows or reasonably should know” about a possible sexual assault. DeVos’ proposed rule would shred this policy and force students to report to campus officials not of their choosing.
So instead of approaching a trusted teacher or administrator with the most horrific, traumatic and difficult to discuss account of sexual assault, a student might be forced to talk to a campus police or an administrator she’d never met before. And survivors will be required to sign a formal document about the assault for the school to begin an investigation.
The result? Fewer survivors may report, as they will not feel comfortable confiding in strangers, nor will they want to commit to a formal, highly restrictive procedure for pursuing justice.
According to the National Sexual Violence Resource Center, 63 percent of all sexual assaults are not reported to the police and more than 90 percent of campus sexual assaults are not reported. Betsy DeVos’ “blame the victim” new rules would perpetuate this imbalance even more — and if she and her top officials are to be believed, that’s just the way they want it.
The head of the Education Department’s Office for Civil Rights, Candice Jackson, has said that investigative processes are not “fairly balanced between the accusing victim and the accused student.”
“Rather, the accusations — 90 percent of them — 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,’” Jackson said, according to the New York Times.
Like Donald Trump, Secretary DeVos would rather listen to donors, think tanks and political extremists who want government to institutionalize their callous disregard for women. There is no legitimate rationale for the Department of Education to dismantle Title IX’s protections and its’ fair and balanced process for all students.
Betsy DeVos’ new rules should go into the shredder — not into law.