Department of Education rolls back piece of Title IX

Kevin Leon

keleon@ursinus.edu

On Sept. 7, 2017, US Secretary of Education Betsy DeVos announced her plan to roll back supplemental documents of Title IX in an effort to protect those accused of sexual assault on college campuses. Title IX is part of the Education Amendments of 1972 that state, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

Since its initial implementation, the Supreme Court and U.S. Department of Education have given Title IX a broader scope, requiring schools to respond and fix unsafe educational environments.

DeVos argued that the power Title IX had under the previous administration was too far-reaching and that it encroached on students’ civil liberties, particularly students accused of sexual assault. She believed that schools acted similar to a court, without the same protections that a real court would grant the accused.

In a letter published on Sept. 22, 2017, the current Acting Assistant Secretary of Civil Rights under the current Department of Education, Candice Jackson, argued that the Dear Colleague Letter, which had been a part of the Title IX process since 2011, overstepped many boundaries. The Dear Colleague Letter, put into place under the Obama administration, provided guidance for schools when dealing with sexual assault cases.

Now under Devos both the Dear Colleague Letter on Sexual Violence and the Questions and Answers on Title IX and Sexual Violence documents are being withdrawn by the Department of Education.

Jackson found that the Dear Colleague letter forced schools to adopt a minimum standard for convicting evidence; only a 51 percent probability of the student having committed sexual assault was needed to find the accused guilty.

The Dear Colleague Letter also allowed for an appeal process in the event that the accused was not found guilty. She claimed that schools regularly reserved an appeal process for those who believed that they were wrongly found guilty.

The withdrawn documents discouraged cross-examination by the parties and forbade schools from relying on law-enforcement investigations. As a result, schools were forced to act as an expedited judicial system.

DeVos’ administration believes that the procedures established by schools for resolving allegations lacked basic elements of fairness and due process. Devos’ administration argues that procedures put in place under Obama seemed to be overwhelmingly stacked against accused students.

“The department has decided to withdraw the above-referenced guidance documents in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits,” Candice Jackson stated.

The main issue that DeVos’ administration finds with the previous state of Title IX is that it allegedly is disproportionally stacked against accused students. Students who faced a Title IX investigation would not have the same protections one normally does in a court of law, even though the process supposedly acted like a court.

Students found to be at least 51 percent likely to be guilty would face different sanctions depending on school’s individual policies, though they were far from legal action. The range of actions vary depending on the college or university but would nonetheless affect their academic careers. The changes made are to protect the academic pursuits of the accused from derailment due to what they believe to be an insufficient amount of evidence.

However some argue that the changes the DeVos’ administration is pushing fail to protect victims of on-campus sexual assault. According to a Washington Post article by Dana Bolger and Alexandra Brodsky, the guidelines in the Dear Colleague letter empowered survivors and prevented administrators from pressuring victims to withdraw from school until their assaulters graduated. Candice Jackson told the New York Times in an interview that 90 percent of sexual assault accusations are false, however, research on sexual assaults has placed the proportion of false accusations between 2-6 percent.

The Dear Collegue Letter also outlines federal protections for students who find themselves accused of sexual misconduct. If the Department of Education cared about potential injustice done to accused students, they would enforce the letter more strictly rather than withdraw it.

First-year student Amanda Turcios worries that the roll back of the guidelines in the Dear Colleague letter will hurt student victims of sexual assault.

“I fear that this will only hurt those who have been assaulted. Yes, there are people who have false allegations/accusations towards them [and that] can really harm their reputation, but the victims who have been abused do not receive the same attention and sympathy,” said Turcios.

These changes made by DeVos’s Department of Education do not require that schools retract these documents from their own Title IX process—only that the federal government no longer mandates them. As a result, colleges and universities no longer face a federal investigation if they are found to not meet the Dear Colleague Letter or the Questions and Answers requirements.

The Title IX office at Ursinus has decided to keep both the documents in place and not change their process in accordance with the current mandates by the Department of Education. Deputy Title IX coordinator at Ursinus, Jessica Oros said, “Ursinus, as an institution, believes in the work of Title IX and what that does… Ursinus uses the [fifty-one percent] preponderance of evidence standard for all of their student conduct so we will continue to use the preponderance of evidence until the department of education says we have to change.”

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