Public debate over Title IX—the 1972 federal law banning discrimination, including sexual assault, based on sex in any educational program that’s federally funded—currently rages with rare fury. Last November, Secretary of Education Betsy DeVos, whose department has already erased at least 20 longstanding guidelines for anti-discrimination measures, proposed updated Title IX measures that critics condemned as “horrifying” and “sweeping rape back under the rug.” Supporters, by contrast, praised DeVos’ proposed policies as necessary correctives to protect due process.
To an extent, both sides have a point.
DeVos’ proposals are a mixed bag of measures that, on the whole, threaten to make it more difficult for victims of sexual discrimination to seek justice. The most controversial stipulations aim to narrow the definition of sexual assault, restrict Title IX cases to those occurring on campus, and limit the university officials authorized to act on assault allegations. Critics have duly, and often vociferously, condemned these proposed changes.
The frame for the debate over Title IX is political—yet another example of the Trump administration undoing Obama-era policies. In 2011, President Barack Obama’s education department drew up new guidelines for interpreting Title IX, which dictated that, “If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.”
Indeed, DeVos’ most notable proposals appear designed to squash that initiative while protecting sexual assailants with the same Trumpian armor many believe ushered Brett Kavanaugh through his contentious confirmation.
But there’s a deeper issue than politics at stake in DeVos’ reforms. The concern that DeVos’ proposals ultimately addresses is one that transcends the political calculus of payback: balancing the rights of alleged victims against the rights of the accused. In this respect, as Harvard Law School’s Jeannie Suk Gersen explains in The New Yorker, while “there is much to criticize in DeVos’ proposal,” there is “also much that would help to make schools’ processes for handling sexual misconduct fairer to all parties.”
Achieving that fairness requires something DeVos’ guidelines lack: balance. Many of her proposed guidelines—the ones that critics have excoriated—overshadow other measures intended to fine tune the equilibrium between due process and respecting the rights of victims.
Sexual assault in colleges is endemic—nearly 25 percent of undergraduates report having experienced it—a reality several of DeVos’ proposals do not contend with. The secretary’s suggestion to downgrade the definition of sexual harassment from the “unwelcome conduct of a sexual nature” to actions that are “severe, pervasive, and objectively offensive” raises the bar too high for many sexual assault victims to bring forward a case. Her equally antagonistic suggestion that schools need not be responsible for discrimination occurring off campus callously ignores the fact that sexual assaults bearing on educational equality know no boundaries: Most college students live and socialize off campus and, for community colleges and commuter schools, the “campus” is more of a concept than a geographical reality. A third reform that’s come under criticism is one that says victims must report abuse to specified university officials rather than to any university figure with whom victims happen to be most comfortable talking to.
Is it any wonder that, among the 100,000 public comments weighing in on DeVos’ reforms (the comment period ended January 29th), a lot more than a few echo the logic of this one: “Fuck You Betsy. You are a shame to all women”?
These measures, while unfortunate on their own terms, also obscure less contentious proposals made by DeVos—ones that actually could strengthen due process for the accused. More precise reforms, such as those designed to accommodate cross-examinations and live hearings during adjudication cases, to report all allegations to both parties and provide open access to relevant evidence, and to assume in all cases a presumption of innocence—none of which now prevail across all campuses—might understandably put victims’ rights advocates on edge. But, given that there’s a 2 to 10 percent chance of false reporting, these changes, if put forward by themselves, would likely provide the accused the due process they deserve, while also granting the accuser protection. Louise Melling, an American Civil Liberties Union attorney who has herself suffered a campus assault, agrees, writing in the Los Angeles Times that her organization supports “robust protections for students facing disciplinary actions.”
As DeVos and the Department of Education sift through the outpouring of public commentary, it’s worth recalling that Title IX has, in its almost 50-year history, been a remarkably successful piece of legislation. It also has long attracted controversy: One need only consider the original response to Birch Bayh’s 1971 attempt to introduce Title IX into the Higher Education Act. As he recalls it:
I wrote Title IX—just one sentence long—and moved in the Senate to have it added to the reauthorization bill. Another senator ruled a Point of Order, contending that since the word “sex” was not included in the Higher Education Act, Title IX–which prohibited discrimination on the basis of sex–was not germane.
It’ll likely be months before DeVos unveils the Department of Education’s final decision on its proposed Title IX reforms. It’s in everyone’s interest—especially the victims and the accused—that the final guidelines preserve the act’s longstanding dedication to justice over politics.
