In September of 2018, Secretary of Education Betsy DeVos proposed a bill that would radically change Title IX and claimed it would be a way for victims to more easily report an attacker, with less hassle for college campuses when dealing with a sexual assault case. However, these changes, when viewed from the direct perspective of the victim of an attack show the exact opposite. What’s more, these changes were proposed a year ago. Aside from a small update in March of 2019, there has been no other word about these changes. What could this mean for Title IX?
Title IX was signed by President Richard Nixon on June 23, 1972. It was a bill that was originally proposed to allow women to participate in school and professional sports and not be discriminated because of sex, but as time passed, more and more was included in the bill. When Nixon signed it, it was a specific document that prohibited discrimination, specifically that of sex, of any kind in a business or practice that was federally funded. The opening of the bill itself stated, “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.” Essentially, this meant that it was now illegal for any business or school could deny anyone participation in any kind of activity based on their sex. Title IX was given a secondary definition as a result of the case of “Franklin vs. Gwinnett County Public Schools” in 1992 when Christine Franklin, a sophomore at a public school in Gwinnett County in Georgia claimed that her teacher and coach Andrew Hill had sexually abused her. Though the case was not initially accepted by the federal court, it was taken up by the supreme court and ruled that students who had been sexually harassed in a public school could sue for monetary compensation. In addition to that, there was the case of Davis vs. Monroe County Board of Education in 1999, which ruled that school boards are liable for failing to stop student-on-student sexual harassment under certain circumstances, as well as the Dear Colleague Letter introduced by the Obama administration in 2011.
Title IX, while there have been setbacks, has made considerable progress in making schools and places of business safer and more equal. However, Secretary of Education Betsy DeVos has made proposals for possible changes to Title IX. Most of the changes center around the process of reporting harassment or misconduct and the following actions and responsibilities of the victim and institution.
One of the changes states that if a student is assaulted by another student off campus, it is no longer the responsibility of the college. In addition to this going against the ruling of the Davis Vs. Monroe court case, this will make getting support much more of a hassle for the victim. Nadia Gaylin, a Junior, had this to say on the matter: “Colleges handpick their students. It’s your kid, it’s a kid you said would be a good fit for your school. So it is the college’s responsibility off campus because they picked the kid to succeed or who they thought would do well at their school.” This is a very important thing to consider. Since colleges are so meticulous about the selection of their students and are adamant that their students act as representatives for the school, forgoing responsibility of a student who sexually assaults or rapes another student makes it seem like the school is not only very irresponsible, but also that the school doesn’t care about it’s students. What’s more, it will give students very limited options about what to do moving forward.
Title IX coordinator of St. Mary’s College of Maryland Michael Dunn had this to say, “If something happens off campus that’s having a negative effect on the educational environment, then we could and should deal with it. And I don’t think we would be doing our job as Title IX practitioners or as educators if we say to a student who comes forward ‘Sorry we can’t help you off campus so it’s not our problem.’ I don’t think that’s true to the spirit of these laws and regulations or to our community.”
Another change that was proposed was the way that reports would be processed. The way it is handled now is that a person can make a report one on one with a Title IX Coordinator (or they can report to a professor, coach, RA, or other mandatory reporter, who will then in turn report to the coordinator). The reports are private, respectful, and if the person making the report desires it, anonymous. The process is a very “play it by ear” experience. The person making the report wishes to pursue further action, such as issuing a no contact order, or they may wish to take legal action. Either way this person is made aware that they are the one in control when they make the report. However, the changes to Title IX make both the initial reporting and the actions taken afterward much more difficult, especially for the victim. First of all, if someone wishes to make a report, they must immediately go to the coordinator. They cannot talk to a coach or teacher (they can still confide in said trusted adult, but the teacher or coach can not be the one who contacts the coordinator) which means that the victim could potentially be making a very sensitive report about something serious and traumatizing that happened to them to a complete stranger and they’d be doing this alone. Seren Gross, a junior, stated that, “From the standpoint of the victim, this means they may have to talk about this to a stranger. Maybe having that person you trust with you at the time of the report will probably be a lot more helpful than just going straight to this person that you’ve probably never met before.”
This dubiousness on the matter is not solely felt by students. Michael Dunn, when asked, had this to say, “I think anytime we are shrinking our efforts to address sexual violence that might be moving in the wrong direction. If you only have four people who are gathering all this information, I worry about patterns of behavior that would not come to light without hearing from folks all over the campus. If we have a strong network of folks who have deep, trusting, mentoring relationships with students so we need to make sure they have that information, because those are the people who are most likely to receive those reports.” The difficulty and stress for the victim does not end here. Rather than the two parties making their reports and defenses separately and privately, they are subjected to a formal hearing, where both parties, including the victim, attacker, and any witnesses involved, would be cross examined, which is more akin to a proper court case rather than just a hearing. This is potentially very harmful to a victim of sexual assault, harassment, misconduct, or rape if they have to go over everything that happened to them with the person who subjected them to this trauma sitting just across the room. Michael Dunn stated, “Hearings are stressful for both parties. One of the changes in these proposed regulations is that it would allow each party’s advisor to cross examine the party and I think that could be a really stressful and traumatizing thing. I wonder if it will have a chilling effect and discourage people from coming forward and engaging in this process because they don’t want to go through that experience.” In addition to that, the intense questioning can be very stressful to the victim. Gross had this to say, “It’s harmful for the victim because then they have to give this statement with their potential attacker in the room, which can be extremely emotionally damaging. Not to mention the other party hears that and has an opportunity to combat that. The whole point of having statements separate is that they don’t have the opportunity to butt heads or change their stories last minute.”
A counter argumentis that rape cases that are brought to court are treated in a similar way, so why would this be a bad thing? The difference between a formal hearing and a legitimate court case is that the victim would be much more thoroughly prepared for questioning in a formal court case. What’s more, it’s the victim’s choice to take legal action. If they wish to take the case to court, they may do so. If someone makes a Title IX report, the change would make it so that they are forced to undergo the hearing, removing both the choice and the privacy of the current system. This also poses a problem with how the victim would be treated and perceived. As Gaylin stated in her interview, “When someone is assaulted or raped, it is scientifically proven that the body goes into self preservation mode so they might not remember a lot of things so a cross examination sounds like it will be really really intense and you might not have that memory of what happened and this could easily make a case for the accused.” So this misremembering could be perceived as the victim being untruthful. Once again, the students are not the only ones who are uneasy with this change of process. Michael Dunn had this to say, “I think that part of our job is to treat people who come forward and report these issues with sensitivity and that we are aware of trauma informed techniques to communicate and to gather information in sensitive and respectful ways. With a hearing, there are performative aspects that can be damaging for both parties. If you have someone watching how both parties are reacting, are they expected to act a certain way and what does it mean? What does it mean if they are really emotional or what does it mean if they have a really flat affect, and a hearing does create opportunities that can be really challenging.”
The final issue with these changes is the way sexual assault and harassment is defined. Under the Obama Administration, sexual harassment was defined as unwanted sexual language, physical contact or harassing someone for their gender identity or sexuality which is very concise and leaves very little room for error. However, under DeVos, the definition would be changed to, “Pervasive and aggressive” and this gray area is very dangerous. As Gaylin stated, “You could have a defendant who sexually harassed someone and say, ‘but it wasn’t pervasive and aggressive.’ You can’t really gauge what ‘pervasive and aggressive’ is to one person as it is to the other,” which means that someone who is accused of sexual assault can claim innocence because what they did may not technically fall under the definition of sexual harassment. And while Title IX has been very helpful, the way victims are treated is not at all appropriate. As Gross stated, “Once someone decides to come out against her attacker or her oppressor it’s almost like she isn’t considered of any value or that she’s no longer human at that point. This very real person is treated like an animal in court. That pushes the narrative of ‘you are not a human you are not an equal so make sure you stay in your place,” which is incredibly harmful to the individual and the percentage of the population as a whole who have been subdued to sexual assault or rape. These proposed changes to Title IX would take a situation that is already biased towards people who are accused rather than being completely neutral to both parties and tips the scale even further.
One thing that people are not sure how to feel about is the amount of time that has passed. The initial proposal was made in November of 2018 and the plan was published in March of 2019. Why has nothing happened since then? Michael Dunn suspects, “There were a lot of thoughts and comments that they had to process and that took a while. The latest round of rumors I heard was that the final new regulations was that they would come out at the end of this month, but here we are on the twenty-seventh and we’re not seeing anything so who knows.” Whereas Gross thinks, “It tells me that this is either something that isn’t taken very seriously and that it’s something that isn’t on their major agenda or it tells me that there was a lot of pushback behind closed doors and they’re hoping people forget about it.” While this lack of action means we won’t be subjected to these harmful changes, it also poses a legitimate concern. If there was ever a change made under the Trump Administration that could potentially be helpful and progressive, would it take this long for that change to be made as well?