In the Time of #MeToo, Will Colleges Hold the Line on Title IX?

The recent widespread use of the hashtag #MeToo has exposed to some—and reaffirmed for others—just how deeply ingrained sexual assault is in American culture. The “Me Too” movement was created on MySpace in 2006 by activist and sexual assault survivor Tarana Burke to combat rape culture through collective action and solidarity. Earlier this month, #MeToo reemerged as a trending hashtag on Twitter in the wake of movie producer Harvey Weinstein’s exposure as a serial sexual predator. Since then, survivors have spoken out in droves, sharing their stories about rape culture and the epidemic of sexual violence. This national conversation has only grown, implicating many men in positions of power, across industries: from journalist Mark Halperin to founder of Silicon Valley incubator 500 Startups Dave McClure to former president George H.W. Bush.

Clearly, the United States has a pandemic, deeply ingrained problem with sexual assault. This has been demonstrated most clearly on our college campuses: Advocates, educators, a Congressional bipartisan task force, and the former administration alike have pinpointed institutions of higher education—where sexual violence runs rampant—as a crucial point at which to bring justice to survivors by holding perpetrators accountable. Stopping the cycle of violence on college campuses in its tracks through survivor-responsive justice processes and education has the power to create positive normative change.

Yet in September, Secretary of Education Betsy DeVos rescinded Obama-era Title IX guidance on sexual assault for U.S. college campuses. The move came in the form of a letter from the Department of Education’s acting assistant secretary for civil rights, Candice Jackson. Specifically, it withdrew the 2011 Dear Colleague Letter on Sexual Violence (the DCL), as well as the 2014 Questions and Answers and Title IX and Sexual Violence, both of which the department had designated as guidance documents.

“Dear Colleagues” and Preponderance of the Evidence''

The DCL was incredibly important, as it instructed schools to use the preponderance-of-the-evidence standard—more than 50 percent sure of guilt, which is lower than the standard of criminal courts—in determining the guilt of an accused attacker. The preponderance standard had been a used for campus sexual assault cases at the Office for Civil Rights throughout the Bush and Clinton administrations before the Obama administration formalized it nationwide. This was the first element of the DCL which Jackson’s letter rebuked, arguing that the preponderance standard formalized by the Obama administration’s “regulatory burdens” deprives “both accused students denied fair process and victims denied an adequate resolution of their complaints.”

Jackson’s argument against the preponderance-of-the-evidence standard and, consequently, the Obama administration’s Title IX guidelines as a whole is that “[w]e have a justice system where nobody demands that the system itself be weighted in favor of a plaintiff… I see no reason why we would want to do it in a campus system either.” But her claim rests on the assumption that sexual assault and rape cases are even making it to the courts. Evidence suggests otherwise: from rape kit backlogs to statutes of limitation to routine mishandling of sexual assault reports, there are many ways in which the judicial system fails survivors—and its continued failure to do so prevents many instances of sexual violence from even being reported.

From rape kit backlogs to statutes of limitation to routine mishandling of sexual assault reports, there are many ways in which the judicial system fails survivors—and its continued failure to do so prevents many instances of sexual violence from even being reported.

Furthermore, by drawing the comparison between campus judicial proceedings and the U.S. justice system, DeVos’s Department of Education is distracting from the root cause of Title IX and its guidelines, which came about in order to address educational discrimination against American women. As Congressmember Annie Kuster (D-NH) told Bustle of DeVos’s Department of Education, “I think they completely missed the point of what Title IX is about.” She continued, “Title IX is to protect the equal educational opportunity of men and women. You can not say that a woman has an equal educational opportunity when one in four women on college campuses experiences sexual assault.”

Fatima Goss Graves, president of the National Women’s Law Center, told the New York Times that the withdrawal will have a devastating impact on students and schools. She explained, “It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law and make campuses less safe.”

The September letter from Jackson stated that the department intends to implement its own rules after a public comment period. In the meantime, it referred educators to the 2001 Revised Sexual Harassment Guidance in revising their institutional policies, should they wish. It is worth noting that as the DCL had threatened non compliant schools with a loss of federal funding, with its withdrawal, monetary incentive to uphold policies shaped by the Obama-era guidelines could be lost.

How Are Schools Reacting?

Some institutions have been noncommittal in how they intend to respond to the department’s decision. Harvard University spokesperson Tania deLuzuriaga told The Harvard Crimson last month, “We are reviewing the guidance released by the Department of Education…rescinding guidance from 2011. We have worked hard in recent years to develop strong and fair policies.” She continued, “The safety and well-being of our community remains the University’s top priority.” The student newspaper reported that Harvard has convened a committee comprised of faculty, students, and staff to review its Title IX policy.

Student organizers are watching, however. Amelia Goldberg and Liam McGill, from advocacy group Our Harvard Can Do Better, wrote in a statement to the Crimson, “Harvard must clarify that changes to our policy made since the 2011 guidelines and subsequent opening of a Title IX investigation against the University—including the adoption of the preponderance-of-the-evidence standard—will not be rolled back.”

On the other side of the country in California, there was broad support over the past month for SB 169, a piece of state legislation that would undercut DeVos’s overhaul. This is a state which codified much of the Obama administration’s Title IX guidelines into law by enacting the 2014 Yes Means Yes bill—the first state to pass an affirmative consent standard. The University of California system president Janet Napolitano wrote a letter in support of the SB 169 to California Governor Jerry Brown (D). On October 16, Brown vetoed the bill, stating that not enough time has passed to fully ascertain the impact of the recently enacted consent legislation. He also cited concern that failure to uphold due process for accused students might have a disproportionate impact on students of color, and that further attention to due process of the accused is needed.

As for now, The Daily Californian at UC Berkeley reported that according to UC Title IX coordinator Kathleen Salvaty, UC practices would not change unless federal legislation required them to. Salvaty told the newspaper, “From our perspective, we’re doing what we’re doing because it’s what we’re obligated to do and it’s morally correct. These obligations existed before 2011 and they will exist after. That’s a right under Title IX.”

A Step Backwards

Leading up to the Department of Education’s September announcement, Jackson and DeVos heard from many of the accused. Jackson said that “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.’”

DeVos and Jackson’s new guidance also encourages Americans to delegitimize the horror that is a culture of sexual assault.

Beyond the casual use of unfounded statistics, that this rhetoric and reasoning are being employed by top government officials and then enacted into policy is unacceptable and dangerous. It also encourages Americans in general to delegitimize the horror that is a culture of sexual assault. Evidence can be seen as close to home as the chambers in which Governor Brown vetoed SB 169—the day after he blocked the bill, more than 140 women legislators, staffers, and lobbyists in the California state legislature signed an open letter testifying to the sexual assault they have experienced at the state capitol in Sacramento.

This cascade of testimonies from women speaking out about sexual assault in different industries cannot each be viewed in a vacuum; nor can they be siloed off from our college campuses. As a society, we can do better. And due to guidance, encouragement, and resources from the previous administration, many universities, colleges, police forces, and state governments have been making progress. We cannot afford to dial back on these issues now in our institutions of higher education—hopefully, as this public comment period plays out, college administrators will realize just how high the stakes and far-reaching the consequences truly are.