Earlier this month, Betsy DeVos announced her Education Department would review Title IX guidance on sexual assault issued by the Obama administration, parroting men’s rights groups’ complaints about false accusations and kangaroo courts.
That is a shame for the one in five college-age women and substantial numbers of men subjected to sexual misconduct, for the institutions responsible for campus safety, and even for accused students.
The Department of Education’s guidance, issued in 2011, responded to the pervasiveness of campus sexual assault and the mishandling of it by universities.
Leaving these matters to criminal courts is no answer: Prosecutors rarely take these cases, and when they do, juries don’t convict.
Worse, victims are put on trial: Why did she go to his dorm room? What did she think would happen if she got drunk and passed out? If she consented to sex with a football player who she just met, wouldn’t she have consented to sex with his friends right afterwards?
Many student victims of sexual assault do not want to go through a criminal trial or put their assailant in jail.
Regardless of criminal law outcomes, Title IX requires schools to respond to sexual assault as a civil rights violation.
Survivors of sexual assault have varying needs. Some need assurance they won’t run into their attacker on campus; others may need accommodations to housing, course schedules or academic work. Title IX requires schools to provide such remedies through a fair and equitable process.
The 2011 guidance protected not just complainants but also accused students. Ironically, Secretary Devos’ examples of unfairly treated men are the results of failures to follow the 2011 guidance, which required fair notice, trained investigators, and equal opportunities to present and challenge evidence.
One of the last enforcement actions taken by the Obama administration found a college in violation for cutting corners in the process used to find a male student responsible for sexual assault.
The Trump administration cannot unilaterally rescind Title IX. But the withdrawal of the 2011 guidance leaves schools to figure out how to meet their obligations.
Many universities have said they will continue to follow the 2011 guidance, recognizing it has improved their responses to sexual assault. But what about the institutions that decide to make up their own rules when an accused student is a valuable athlete, a popular fraternity member or a young man with connections and a “bright future”?
The saga at Baylor University in Waco, Texas, shows how institutional incentives to cover up sexual assault can tilt the process against complainants.
Critics charge that by requiring schools to use the preponderance of the evidence standard — the normal civil proof standard — the guidance tilted the scales against accused students.
But most colleges already used the preponderance standard for all student misconduct, including sexual assault, well before 2011.
And both Republican and Democratic administrations have found schools out of compliance for not using the preponderance standard as far back as the mid-1990s.
Raising the proof standard would make proving sexual assault extraordinarily difficult, reinforcing rape myths about false accusers and women who say no when they really mean yes.
The starting point for the 2011 guidance was that sexual assault victims should not be treated more skeptically than accused students or victims of other serious misconduct.
The Trump administration’s starting point was laid bare in Acting Assistant Secretary Candice Jackson’s comment in The New York Times this summer that “90 percent” of student sexual assault complaints involve mutually drunk encounters and regrets about consensual sex.
She later apologized, but the remark — backed by zero evidence — aptly describes the department’s premise in pushing the reset button on Title IX.
By foregrounding this false narrative, the secretary’s reversal on Title IX sets back the movement to end campus sexual assault not just a matter of years, but decades.
Deborah L. Brake, a leading expert on Title IX, is the John E. Murray Faculty Scholar and a professor of law at the University of Pittsburgh School of Law. Readers may write her at 3900 Forbes Avenue, Pittsburgh, PA 15260.