Indiana Daily Student

OPINION: New Title IX regulations threaten rights of student survivors

Betsy DeVos’ Department of Education fails to protect against sexual harassment

President Donald Trump shakes Education Secretary Betsy DeVos' hand during a parent-teacher conference listening session Feb. 14, 2017, in the Roosevelt Room of the White House in Washington, D.C.
President Donald Trump shakes Education Secretary Betsy DeVos' hand during a parent-teacher conference listening session Feb. 14, 2017, in the Roosevelt Room of the White House in Washington, D.C.

"It is a very scary time for young men in America,” cried Donald Trump, conjuring a narrative in which it is only a matter of time before your brother, friend or father is falsely accused of perpetrating sexual violence. 

It seems the U.S. Secretary of Education, Betsy DeVos, buys into the same illusory story. 

Title IX of the Education Amendments Act of 1972 obliges schools to protect their students from sex-based discrimination in educational spaces. Its existence equips student survivors of sexual harassment and assault with the legal tools to pursue disciplinary action against perpetrators. As of Aug. 14, DeVos has significantly narrowed its protections.

The US Department of ِEducation’s latest Title IX regulations entered into effect this month, creating an increasingly hostile environment for student survivors.

DeVos paints the regulations as an attempt to “strengthen title IX protections for all students.” A critical read of the 2,000-page directive reveals which students she’s truly interested in protecting — those who double as perpetrators of sexual violence. 

First, the regulations narrow Title IX’s definition of sexual harassment. To qualify as harassment, behavior must be “severe, pervasive and objectively offensive.” Previous guidance included “severe or pervasive” cases, meaning severe behavior did not have to be repeated in order to constitute harassment. 

Already, survivors seeking recourse in the wake of a single egregious act of sexual harassment are no longer supported by Title IX.

All schools are now required to hold live hearings when pursuing Title IX action. In order for evidence presented by a survivor to be considered, they must agree to be subject to cross-examination by a “party advisor” of the other party’s choice. Advisors could include a hired attorney or even the perpetrator’s best friend. 

The new regulations continue to hollow Title IX of its ability to protect survivors. The removal of the recommended 60-day limit on investigations allows schools to draw out investigations indefinitely. They rid schools of the mandate to respond to incidents not reported to certain individuals, such as deans or Title IX coordinators. 

DeVos sacrifices protections for survivors, shifting policy to the advantage of those falsely accused of sexual assault. According to the National Sexual Violence Resource Center, this occurs in as few as 2.1% of cases. 

In contrast, 63% of survivors never report their experiences with sexual violence. Why? They are deterred by already difficult processes made more harrowing by these regulations. 

The scale is not balanced by these regulations. It is shifted in favor of the perpetrator. 

No regulation better demonstrates this than the change to the evidentiary standard. Schools may now choose to increase the evidentiary standard from a “preponderance of evidence” to a standard of “clear and convincing evidence.” Rather than a standard which deems the plaintiff’s case more likely to be true than untrue, the plaintiff must prove their case beyond a shadow of a doubt. 

What routes to recourse remain for survivors? Students now rely more heavily upon the sexual misconduct policies created independently by their universities. When a report does not meet the standards for a Title IX case, the school may seek to investigate a case under the jurisdiction of its own institutional sexual misconduct policy instead.  

For example, while not meeting the new Title IX process’s standard, IU’s sexual misconduct policy allows the school to address misconduct that is “severe or pervasive” but does not have to be both, according to Emily Springston, IU’s sexual misconduct and Title IX coordinator. It also allows IU to address incidents occurring between students off-campus. IU also opted to keep the lower “preponderance of evidence” standard in the Title IX process as the regulations left this decision to schools. 

These decisions made by IU make recourse more accessible for survivors. 

This is not enough. Federal civil rights law such as Title IX should not have to rely upon the actions of individual institutions to reach the people the law is intended to protect. 

Remember, while Title IX has been stripped of much of its power to protect student survivors, support for survivors may still be found within institutional policy. And when not supported in policy, support must be found in community, in solidarity and in activism. 

Maddie Butler (she/her) is a sophomore studying International Law and Arabic. She is the director general of Indiana Model United Nations.

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