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Gersen writes: "The Dear Colleague Letter has also become a powerful dual symbol: of support for sexual assault victims on the one hand, and of failures of campus due process on the other."

Education Secretary Betsy DeVos. (photo: Win McNamee/Getty Images)
Education Secretary Betsy DeVos. (photo: Win McNamee/Getty Images)


Betsy DeVos, Title IX, and the "Both Sides" Approach to Sexual Assault

By Jeannie Suk Gersen, The New Yorker

12 September 17

 

ver the summer, anticipation over what the Education Department might do about campus sexual assault heightened as the Education Secretary, Betsy DeVos, held high-profile meetings with groups advocating for the interests of universities, sexual-assault victims, and accused students—including one men’s-rights group accused of harassing women online. DeVos’s civil-rights head, Candace Jackson, alarmingly, told the Times that “90 percent” of campus accusations are over drunk or breakup sex.

As the new school year began in earnest, widespread fears of a “rollback” of Title IX enforcement accompanied DeVos’s long-awaited policy speech, which was delivered on Thursday, at George Mason University. Promising to continue to enforce Title IX and saying that “campus sexual misconduct must continue to be confronted head-on,” DeVos announced the launch of “a transparent notice-and-comment” process wherein the Education Department will receive comments from the public, “to incorporate the insights of all parties.” (This is the standard legal process for agencies making binding legal rules.) After the speech, DeVos explicitly told CBS News that, while the Obama Administration’s policies on sexual misconduct are not now being rescinded, the current process—which will take months, if not years—will eventually lead to legal rules that are intended to replace them.

Title IX requires schools that receive federal funds not to discriminate on the basis of sex. The law itself does not mention sexual violence, but its interpretation by courts and by the Education Department since the law’s passage, in 1972, has led to the common understanding that Title IX’s ban on sex discrimination requires schools to address sexual violence among students.

Criticizing the previous Administration’s enforcement methods, DeVos said that “rather than engage the public on controversial issues, the Department’s Office for Civil Rights has issued letters from the desks of un-elected and un-accountable political appointees.” She was primarily referring to the “Dear Colleague Letter” issued by the Obama Administration in 2011, which provided instructions on how schools must investigate and adjudicate accusations of sexual violence. The letter itself stated that it could not create any new legal obligations, because it was issued without the process of public comment that is required to make an agency’s pronouncements legally binding. Yet the Education Department seemed to treat the letter as if it were law in investigations and enforcement proceedings against schools. The Dear Colleague Letter has also become a powerful dual symbol: of support for sexual assault victims on the one hand, and of failures of campus due process on the other.

The non-binding status of the Dear Colleague Letter meant that a new Administration could easily retract it with another letter, much in the same way that the Trump Administration retracted the guidance on transgender students earlier this year. But DeVos pointedly did not do this, declaring, “The era of ‘rule by letter’ is over.” Instead, she announced that the agency would engage in precisely the notice-and-comment rulemaking process that the Obama Administration chose to skip.

Judging by DeVos’s speech, what has been portrayed as a rollback of Title IX is really an embrace of a framework of compatibility: one in which Title IX seriously addresses sexual violence and also requires fairness to the accuser and the accused. (Disclosure: Last month, I joined three feminist law faculty at Harvard in submitting a comment to the Education Department urging policy revisions along these lines. I was also a signatory to an open letter from twenty-eight members of Harvard’s Law School faculty, published in 2014, that DeVos approvingly cited in Thursday’s speech.) DeVos drew on the stories of victims and accused students to reject the idea that the system could serve only one or the other. “Any school that refuses to take seriously a student who reports sexual misconduct is one that discriminates. And any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination.” Since 2011, dozens of courts have made clear that schools that do not give accused students a fair process may also be committing sex discrimination under Title IX.

The rejection of an either/or mentality—one in which the education system is either “for” or “against” victims of sexual violence—was striking also in DeVos’s nod to the growing phenomenon of female students who are accused of sexual misconduct on campus, underscoring that a respect for basic fairness and due process benefits both women and men. She pointed to a recent case in which the University of Southern California disbelieved a female student’s insistence that she had merely “roughhoused” with her boyfriend, and expelled him for his alleged abuse over her objection. Calling the “current reality” a “failed system” in which “everyone loses,” DeVos noted, “Survivors aren’t well-served when they are re-traumatized with appeal after appeal because the failed system failed the accused.” When schools use an unfair process to discipline students, she suggested, even guilty parties can be vindicated later in lawsuits in court. Sloppy campus processes lead to general lack of confidence in the results, and further undermine the interests of sexual-assault victims.

In short, DeVos appears to be proceeding exactly as an agency head should: give notice, take comments, and explain why a given policy is being adopted. But the intent to depart from an Obama-era policy, which itself did not go through those steps, will undoubtedly garner outrage and dismay. “We must continue to condemn the scourge of sexual misconduct on our campuses,” she said. “We can do a better job of making sure the handling of complaints is fair and accurate,” she also said. If these statements were made by a different official in a different Administration, they would seem rational, uncontroversial, and even banal. The idea that an adjudicatory process should be fair to both sides is about as basic as any facet of American law can be, even when it is articulated by an individual who is noncommittal on the basic educational rights of L.G.B.T.Q. students and students with disabilities, and who believes that guns belong in schools to protect against grizzly bears. But in these times, especially following the equivocal statements made by President Trump on the violence in Charlottesville, the very concept of “both sides” may approach moral peril (to say nothing of the fact that Trump himself has boasted of sexual assault).

In the period since the Obama Administration first brought sexual assault to the foreground of Title IX enforcement, the courts’ and the public’s views have developed to crystallize around the idea that Title IX protects the fair treatment of accusers and accused, women and men. What promises to emerge from the new rulemaking process—which will generate mountains of public input—is more, rather than less, regulation and enforcement of schools’ obligations to all parties under Title IX.


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+1 # thekidde 2017-09-12 09:30
It seems the Party of Lincoln has totally degenerated into the Party of Idiots and Fools. Led by the Chief Fool - Donald Drumpf.
 
 
0 # bardphile 2017-09-12 12:19
How can a process that seeks to determine guilt or innocence regarding sexual harassment (or any other crime) NOT be "both sides," at least if its goals are fairness and justice?
 
 
+2 # engelbach 2017-09-12 17:50
DeVos cites one case in which a university administrator acted stupidly and uses that as a reason to damn the whole effort of the Obama administration to address the serious problem of sexual harrassment on campus.

The simple fact is that campus sexual harrassment has been greatly under-reported and violatators more often than not have gone unpunished.

I see no proof from DeVos that innocent men have been unjustly punished in more than an isolated case, just happens as in the legal system.
 
 
0 # kyzipster 2017-09-13 08:23
I listened to Tom Ashbrook's program on this topic recently. It seemed fair. I can't believe that DeVos's agenda or motivation is something I could agree with but I think it's fair to question the Obama Administration' s efforts.

When there are severe consequences for those accused and they have no right to present their side, this hardly seems just or constitutional. It's not how our legal system works. At the same time, universities do have an obligation beyond the judicial system to address sexual assault.

These accusations can go on a person's permanent record. Grabbing someone's body at a drunken frat party is 'assault', imo, and the culture needs to evolve on this issue. However, I don't think it's farfetched to see this issue pushed further and embraced by universities. Any expression of lust could be interpreted as 'assault', verbal expression. Even a person's emotional state while engaged in consensual sex is under scrutiny. There was a person interviewed who expressed this.

To punish someone for life, giving them a permanent record on their transcript, is what's happening. We live in a culture that doesn't always distinguish when it comes to sex crimes. A person can be denied employment. This isn't always about breaking the law, it's about discipline in a university environment. If we want to move into the future with a much broader definition of 'assault' and I think we should, we need to be concerned with all of the consequences.
 

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